Editor's note: This is the third of three stories that will explore the current state of lead paint litigation and are based on Legal Newsline's discussion with paint industry spokesperson Bonnie Campbell and Sherwin-Williams attorney Chuck Moellenberg. The first two can be found here and here.
As far as the paint industry is concerned, 2008 will be dedicated to preventing any more hypothetical setbacks from producing a very real loss of money.
Four cases should be at the forefront of lead paint litigation next year, attorney Chuck Moellenberg said. First on the list, though, will be three companies asking the Rhode Island Supreme Court to overturn the one major loss the industry has incurred.
That was a 2006 decision in state Superior Court, where, Moellenberg said, Judge Michael Silverstein left the jury no choice but to find Sherwin-Williams, NL Industries and Millennium Holdings guilty of creating a public nuisance when they manufactured lead-based paint when it was legal to do so.
"The trial court rulings were so aberrational that no other state could fit its law into what happened in Rhode Island," said Moellenberg, an attorney with Pittsburgh's Jones Day who is representing Sherwin-Williams.
"It was remarkable. The State didn't have to prove the product existed in Rhode Island today and the jury didn't have to think they did anything wrong, the two foundations of any type of tort claims.
"They ended up trying a hypothetical case."
Currently, the "hypothetical" verdict has a chance to cost the three companies $2.4 billion -- the price of Rhode Island Attorney General Patrick Lynch's lead paint abatement plan.
The appeal will be heard in May 8. Former Iowa Attorney General Bonnie Campbell, who serves as spokesperson for the companies, didn't hesitate to rattle off a list of what she feels were errors made by the trial court.
"I may be oversimplifying this. These are the instructions that went to the jury, about 20 pages," Campbell said.
"Basically, the judge said to the jury that it doesn't matter how long ago all of this stuff happened, it doesn't matter if the defendants did anything wrong or not, it doesn't even matter if it's their paint on the wall.
"If you find that the presence of lead paint in Rhode Island poses a health risk or public nuisance -- I forget how it was defined -- then you must say so."
Lynch, who hired plaintiffs firm Motley Rice to represent the State on a contingency fee after the first attempt at the lawsuit ended in a mistrial, obviously had no problem with the jury's findings.
"I would like to congratulate each and every member of my legal team, and thank them for pouring their hearts and souls into this noble cause," he said after the verdict. "And, of course, I'd like to thank the jury for their service, their attention to the facts and evidence that led them to this moment, and their courage in rendering a historic verdict that, ultimately, will help make Rhode Island a safer and better place to live."
Almost all of the 12 lawsuits filed against the companies in Ohio have been dismissed. Suits filed by the City of Columbus and the State of Ohio (through Attorney General Marc Dann) are still pending in the Franklin County Court of Common Pleas.
Moellenberg said most of the other 10 were voluntarily dismissed after the companies filed their own motions to dismiss. The Ohio Supreme Court's decision to rule a veto of Senate Bill 117 by Gov. Ted Strickland invalid put the tort reform measure on the books.
According to Moellenberg, the judge in the City of Toledo's case ruled the law reinforced existing state laws that prevent public nuisance lawsuits in cases of products liability.
The County of Santa Clara's appeal will be heard in San Jose, with a hearing set for February. In April, a state Superior Court ruled that contingency fee awards for outside counsel hired by government plaintiffs were not permissible in cases of public nuisance.
The trial judge's decision was based on a state Supreme Court ruling. The county's case was filed in 2000 and has since been joined by several municipalities and counties. It is being handled by Cotchett, Pitre and McCarthy, based in San Francisco.
Moellenberg said Sherwin-Williams is the lone defendant in the only personal injury case coming to trial in 2008. The plaintiff is 16 years old and alleges he had elevated blood-lead levels when he was 2.
He also claims he can pinpoint Sherwin-Williams' paint as the culprit. Moellenberg said he plays on his high school's varsity football and basketball teams, though he is "someone who is not going to be a star academically."
The case is in Jefferson County Circuit Court, located in Fayette.
Future state actions
As a former member of the public sector, Campbell says she hopes state officials realize how harmful lead paint suits can be, especially when none of the defendants manufactured it after the federal ban in 1978.
"My perspective is that the public policy implications are just horrible," Campbell said. "What would cause a company in the future to do the right thing when public policy eliminates any incentive to do it."
Soon Moellenberg and the other paint attorneys will file motions to dismiss the City of Columbus' and Dann's cases. But Campbell knows she will have to be aware of other movements around the country if the appeal in Rhode Island is not successful.
"No (state Attorney General) is on my radar screen, but you never know," she said. "The glass is very full -- I think -- in Rhode Island. I think we're going to win."