Rhode Island not ordered to pay up in failed lead paint suit

By John O'Brien | May 26, 2010


PROVIDENCE, R.I. (Legal Newsline) - Rhode Island Superior Court Judge Michael Silverstein is not forcing the State to pay for the defendants' court costs incurred during unsuccessful litigation against the former makers of lead paint, though an appeal is planned.

With the litigation more than 10 years old, Silverstein wrote Tuesday that the state Supreme Court has not articulated a standard of review to be used in such a case and used a federal standard. He added there is a "presumption" of awarding costs to the victors.

"Although the State did not ultimately prevail in this action, its claim was neither frivolous nor made in bad faith," Silverstein wrote. "In Rhode Island, the attorney general has a 'common law duty to represent the public interest...'

"The court has also considered the substantial benefits that have been conferred on both the public and the prevailing parties. This litigation has brought significant attention to the serious harms of lead poisoning in Rhode Island, leading to an increased awareness in both the public and state officials."

The State has already been ordered to pay the costs of co-examiners hired to help with a $2.4 billion abatement plan before the state Supreme Court overturned state Attorney General Patrick Lynch's initial victory.

Charles Moellenberg, attorney for Sherwin Williams, said an appeal is coming.

"The Sherwin Williams Company believes the Attorney General, just like every other losing party, is responsible to pay litigation costs, not including legal fees, when he chooses to sue," he said.

"That's especially true when the state Supreme Court said that the Attorney General's lawsuit should have been dismissed at the outset nine years ago. To protect the interests of our employees, shareholders and insurers, The Sherwin Williams Company will appeal today's decision to the Rhode Island Supreme Court."

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

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

After the mistrial and while Whitehouse prepared to leave office in 2002, 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.

McConnell, who has been nominated for a federal judgeship in Rhode Island, continued to donate heavily to Whitehouse, now a U.S. Senator who recommended him for a federal judgeship.

The firm had thought of using a public nuisance claim against the companies as a way around certain defenses that could have stonewalled a products liability claim, like the tolled statute of limitations.

The state Supreme Court did not buy the argument, overturning the verdict in 2008.

"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," then-Chief Justice Frank Williams wrote.

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

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