July 2, 2008
R.I. Supreme Court Overturns Lead-Paint Ruling
By Peter B Lord
The judges say the companies did not control their paints after selling them generations ago.
In a unanimous 4 to 0 ruling, the court overturned a string of decisions by Superior Court Judge Michael A. Silverstein and a verdict by a six-person jury that found the companies created a public nuisance by making and selling the paints.
The court found there was no public nuisance because even though lead-based paints continue to harm children today, Sherwin Williams Inc., NL Industries and Millennium Holdings LLC did not control their paints after they sold them generations ago.
It was a major decision in a case that has taken on massive proportions. Within hours, it was cited on hundreds of business and health Web sites across the country. It reverses a verdict from the longest running civil trial in the state's history.
The ruling saves the paint companies billions of dollars that the state was demanding to clean up the paints on hundreds of thousands of houses in Rhode Island. It cost Motley Rice, the private law firm that bankrolled much of the state's case, contingency fees that would have amounted to 16 percent of the billions of dollars.
Lawyers said the decision will likely dampen the zeal other states and municipalities have expressed for filing similar suits.
Finally, the specter of significant new costs to the state arose when Sherwin Williams lawyer Charles H. Moellenberg Jr. said yesterday the company was considering seeking recovery of its legal costs.
"This litigation has gone on for a long time and it was unwarranted," said Moellenberg. He said he didn't know how much the company spent defending itself.
Because no federal issues were involved in the ruling, no appeal seems possible to the U.S. Supreme Court. The case is over, say paint company lawyers. Attorney General Patrick C. Lynch agreed.
Fortunately, the lead-poisoning rate has declined precipitously during the long legal battle. In 1998, 3,437 children tested before they entered school in Rhode Island had elevated lead levels, which can cause neurological problems ranging from loss of intelligence to behavior and attention problems.
Last year, the number of new cases dropped to 614.
During that period, state, federal and local governments have spent millions of dollars cleaning up lead paints. The state passed a new lead law and thousands of landlords have taken classes on keeping their buildings lead safe.
"I don't think there is anyone who doesn't know something about lead poisoning now," says Roberta Hazen Aaronson, executive director of the Childhood Lead Action Project, an advocacy group for families of lead poisoned children. "That wasn't the case 10 years ago."
Reactions to the court ruling reflect the ideological nature of the case that were staked out nine years ago when U.S. Sen. Sheldon Whitehouse, then the attorney general, announced the original lawsuit against eight paint companies.
Whitehouse held a news conference on a schoolyard in Pawtucket, where 20.7 percent of the children entering kindergarten that year had elevated lead levels. He predicted a long, bitter legal battle with paint companies blaming the poisonings on parents. He said the issue at stake was simple, "When you make a mess, you have to clean it up."
At the time, Moellenberg, the Sherwin Williams lawyer, said the companies took their paints off the market in the 1950s when they were found to be harmful. The problem, he said, is Rhode Island had not done enough to persuade landlords to clean up chipping paint.
Yesterday, Moellenberg said the court clearly came down in favor of the companies' theories.
"The Supreme Court went out of its way to make it clear that Rhode Island children are not left without a remedy -- their remedy is the property owners," Moellenberg said.
He said the court found that the trial court should have thrown the case out back in the beginning because the companies made a lawful product 50 years ago. The responsibility for subsequent problems should be with property owners.
Michael Nilan, a lawyer for Millennium, said the Rhode Island Supreme Court was the third state supreme court to reject using a public nuisance theory to press for lead-paint damages. "I think this will go a long way to curtail further public nuisance suits [around the country]," he said.
The ruling was also hailed by the American Tort Reform Association and the U.S. Chamber of Commerce, which commended the court for "rightly repudiating this flawed legal scheme designed to put more money into the pockets of trial lawyers while doing little to correct any perceived wrongs."
Yesterday, Whitehouse was traveling, but his staff issued a statement saying he found the ruling "deeply disappointing."
"There is no doubt that lead paint manufactured by these companies caused grave harm to thousands of Rhode Island children," Whitehouse said. "It has for years been Rhode Island's worst public health problem for children."
Aaronson said, "Once again, corporate power trumps social justice."
The state cut spending on lead abatement in half this year, to about $650,000, because it anticipated getting some help from the companies. Now, she said, it will have to look to other sources.
Lawyer Jack McConnell, who represented the state, said the decision stops an abatement process that would have finally solved a major public health problem.
Patrick MacRoy, executive director of the national Alliance for Healthy Homes, said the state trial "highlighted the undisputable moral failings of this industry. For decades, the companies added a known toxin banned in other countries to a household product, while duplicitously marketing its safety and virtues."
It took Attorney General Lynch some six hours before he was ready to talk about the ruling, which he said he disagreed with and found "enormously disappointing."
He said, "Saying it shouldn't go forward is an insult to me, the [trial] court and the jury."
He said the court emphasized that control of the paint shifted to landlords. "That was the defendants' play, and they [the court] fell for it," he said.
He said his office dedicated more lawyers, staff and resources to the case than any other in the state's history.
"We met every legal challenge from corporate America's defense counsel and we survived their every attack to secure victory from a jury of our peers. I believed then, believe now and will always believe that our peers got it right."
He noted that the Supreme Court observed that common law evolves slowly, but that when children are being poisoned, it should evolve quicker.
The court did provide some minor victories for Lynch.
It reversed contempt citations and $15,000 in fines imposed by Silverstein on Lynch for criticizing the corporate lawyers.
It also supported Lynch's use of private lawyers working for contingency fees as long as his office "retains absolute and total control over all critical decision-making."
In its 81-page decision, the justices were repeatedly apologetic about not providing relief to the children being poisoned. They said their actions were bound by law and couldn't go beyond the law.
"This Court is powerless to fashion independently a cause of action that would achieve the justice that these children deserve," the justices wrote.
Later, they added, "in reversing the judgment of the Superior Court, we mean no disrespect to the distinguished trial justice, the jury, the members of our judiciary, the trial lawyers, or the Office of the Attorney General -- all of whom labored for years over this formidable and problematic case."
By day's end, the price of Sherwin Williams stock rose 6.4 percent, while NL Industries was up 4.6 percent.
Number of children in R.I. with elevated blood lead levels
Oct. 13, 1999 Attorney General Sheldon Whitehouse, above, right, citing the high percentage of children in Rhode Island with elevated levels of lead in their bloodstream, files suit against eight major paint companies alleging they created a public nuisance.
Oct. 29, 2002: The case ends in a mistrial, with four jurors siding with the companies and two with the state.
March 21, 2003: Newly elected Attorney General Patrick C. Lynch announces that he will continue to pursue legal action begun by Whitehouse against the paint companies.
Feb. 22, 2006: At right, Roberta Hazen Aaronson, left, and Liz Colon, both advocates of the suit against the paint companies, leave court after a six-person jury finds that the "cumulative presence of lead pigment in paints and coatings on buildings throughout the state of Rhode Island" constituted a public nuisance.
Feb. 26, 2007: Superior Court Judge Michael Silverstein, who presided over both trials, rejects every objection raised by the paint companies over the way he administered what had become the longest civil jury trial in state history.
July 1, 2008: Lynch, right, at a news conference yesterday after the Rhode Island Supreme Court overturns the ruling against the paint companies, calls the decision "enormously disappointing."
The Providence Journal / Ruben W. Perez
Originally published by Peter B Lord, Journal Environment Writer.
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