Another paint suit brushed away

By John O'Brien | Jul 9, 2008


COLUMBUS, Ohio (Legal Newsline) - The Fall of the Public Nuisance Empire continued Wednesday with the voluntary dismissal of one of the remaining lawsuits against the former manufacturers of lead-based paint.

While the State of Ohio's suit remains, the City of Columbus decided to voluntarily dismiss its suit, with prejudice, the 10th such Ohio city to do so. The decision comes a week after the State of Rhode Island's landmark victory was overturned.

Some felt that decision may have marked the end of a legal theory that uses a public nuisance claim as a way of bringing a products liability case. Santa Clara County, Calif., has the only other pending case.

"The City of Columbus followed settled law by asking the court to dismiss its lawsuit," said Charles Moellenberg, an attorney with Pittsburgh's Jones Day firm who represented Sherwin-Williams.

"The lawsuit was legally and factually wrong in suing companies that lawfully made products that the city, painters and consumers demanded historically as the best on the market."

Also named as a defendant in Columbus' suit, filed in the Franklin County Court of Common Pleas in Dec. 2006, was Millennium Holdings. The two, along with NL Industries, were the beneficiaries of the Rhode Island Supreme Court's decision last week.

The public nuisance idea was thought up by an attorney at plaintiffs firm Motley Rice. It helped the plaintiffs avoid certain defenses a products liability claim would have to endure, like the tolled statute of limitations. Lead paint was outlawed in 1978.

"The lawyers who sold Columbus on this lawsuit made much of similar litigation in Rhode Island," Moellenberg said. "Now, the unanimous ruling by the Rhode Island Supreme Court last week that dismissed the Rhode Island case has confirmed that public nuisance lawsuits are ill-advised and without merit."

A report last week in the Columbus Dispatch indicated the City of Columbus' suit might soon be deserted.

"Most everybody pinned their hopes on how Rhode Island moved," Columbus City Attorney Richard C. Pfeiffer Jr. said in the report. "I think it's fair to say, with Rhode Island's decision, we'll have to seriously re-evaluate this case and see if it should continue."

The report added that up to $1.7 billion would have to be spent to clean up 150,000 lead-contaminated homes.

Rhode Island Attorney General Patrick Lynch created a $2.4-billion abatement plan for his state in the event the suit was successful. Lead poisoning is at a 10-year low in the state.

"Those products poisoned our infants and children - and continue to poison our infants and children - while bringing great profits to the companies that made and sold them," Lynch said.

"Today, the Supreme Court ruled that these defendants do not have to clean up the mess they have made. I find this legally and fundamentally wrong."

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

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.

Similar suits have failed in Wisconsin, Missouri and New Jersey.

"Extraordinary progress has been made in addressing lead risks to children from all sources," Moellenberg said. "Enforcement of current Ohio law requiring property owners to keep their properties in a safe condition and free of hazards will finish the job."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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