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Saturday, January 18, 2020

Defendants prevail in historic R.I. lawsuit

By John O'Brien | Jul 1, 2008



PROVIDENCE, R.I. (Legal Newsline) - The State of Rhode Island put nearly 10 years into suing the former manufacturers of lead-based paint and now, thanks to the state Supreme Court, has nothing to show for it.

Four Justices ruled unanimously Tuesday that the State's suit, spearheaded by prominent plaintiffs firm Motley Rice, should have been dismissed before a 2006 verdict put three companies -- Sherwin Williams, Millennium Holdings and NL Industries -- on the hook for a costly lead paint abatement process in the State.

The companies were fighting a public nuisance claim brought by the State. A products liability suit was subject to a tolled statute of limitations.

During oral arguments May 15, Assistant Attorney General Neil Kelly quoted a Latin phrase embedded in the public nuisance law, which originated in England. Translated, it says, "Time does not run against the sovereign."

"The State has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children," Chief Justice Frank Williams wrote.

Williams added that no matter how serious a problem lead poisoning is in the State, a "public nuisance law simply does not provide a remedy for this harm."

Lead paint was outlawed in 1978, and Motley Rice convinced former Rhode Island Attorney General Shelden Whitehouse to hire it on a contingency fee to bring the first state-backed case over the issue in 1999.

An attorney at Motley Rice thought of bringing a claim of public nuisance to work around certain defenses, like the tolled statute of limitations.

The first trial resulted in a mistrial, the second (filed by current Attorney General Patrick Lynch) in a 2006 verdict against the three companies. It was the longest civil trial in state history.

After the mistrial and while Whitehouse prepared to leave office in 2002, Motley Rice's Jack McConnell, of the firm's Providence office, contributed $1,000 to Lynch's election efforts.

In Lynch's next campaign, McConnell gave him $2,000. In between, in Lynch's non-election year of 2004, McConnell still gave him $2,000.

Had the verdict been upheld, the companies may have been forced to pay for Lynch's proposed $2.4 billion abatement plan.

Similar suits have failed in Wisconsin, Missouri and New Jersey and are pending in Ohio and California.

"The legislative body made clear policy decisions about how to reduce lead hazards in Rhode Island homes, buildings and other dwellings and who should be responsible," Williams wrote.

"Importantly, the General Assembly has recognized that landlords, who are in control of the lead pigment at the time it becomes hazardous, are responsible for maintaining their premises and ensuring that the premises are lead-safe."

The 83-page opinion addressed four other issues.

-Lynch's request for $26 million in compensatory damages was denied, as the verdict had been overturned;

-Lynch's appeal of the verdict against Atlantic Richfield was denied;

-Lynch's appeal of being held in contempt twice during the second trial was successful; and

-The Court recognized the validity of certain contingency fee agreements between the Attorney General and outside counsel.

Justice Maureen McKenna Goldberg did not participate in the case.

From Legal Newsline: Reach John O'Brien by e-mail at

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State of Rhode Island