New England Biz Law Update
The Rhode Island Supreme Court recently heard oral arguments in a landmark lead paint case that is being closely watched by other states, as well as plaintiffs’ attorneys throughout the nation.
Attorneys for three paint companies asked the court to overturn a verdict from two years ago finding that their lead-based paints sold decades ago created a public nuisance by poisoning children throughout Rhode Island. There was no evidence, they argued, linking any of their lead pigments to a single residence in the entire state.
Claiming that the public nuisance doctrine was improperly applied in the case, Sherwin Williams Co. attorney Paul M. Pohl argued before the court: “This is the first case in the English-speaking common-law world where people charged with a public nuisance weren’t allowed to see the place where they made a public nuisance.”
“No one can stand up here and say that jurors found there was even an ounce of Glidden lead paint in the state,” agreed William Kayatta Jr., who represented Millennium Holdings, the holding corporation of the company that manufactures Glidden paint.
John J. McConnell, a partner at Motley Rice in Providence, R.I., who was lead counsel for the state of Rhode Island, contended, however, that the evidence showed the defendants were the links in an “unbroken chain to the harm that exists today” caused by the collective presence of lead paint in the state.
Although lead paint has been banned for 30 years, the companies’ actions decades ago are “causing kids to be brain-damaged and landlords to be burdened today,” McConnell said. “These companies – each one of them manufactured lead, promoted lead and sold the toxin in people’s homes in Rhode Island.”
Public nuisance?
A jury in 2006 found the three paint manufacturers liable for creating a public nuisance by selling lead paint years ago, and ordered them to clean up lead-contaminated buildings throughout the state.
The verdict marked the first time paint manufacturers were held liable for injuries caused statewide by exposure to lead paint.
The state estimated the three paint manufacturers – Sherwin Williams, Millennium Holdings LLC and NL Industries – would have to spend up to $3 billion to remove lead paint from buildings throughout Rhode Island. A fourth defendant, Atlantic Richfield Co., was found not liable.
During the four-hour hearing before the Rhode Island Supreme Court, which was broadcast on the web because of the intense national interest, the justices questioned the state’s attorneys about the application of the public nuisance statute.
“How is this a public nuisance when we’re dealing with private residences?” asked Justice William P. Robinson III.
And Chief Justice Frank J. Williams asked: “Why isn’t this a product liability case?”
Fidelma Fitzpatrick, a Motley Rice partner who also represented the state, responded that the presence of lead paint in 250,000 Rhode Island homes today “is precisely what makes it a public nuisance.”
‘No other state’
After the verdict in Rhode Island, other states, cities and counties – as well as some individuals – used the public nuisance theory to sue the paint industry.
But the Missouri and New Jersey Supreme Courts have rejected public nuisance claims, and two juries in Wisconsin have found in favor of the paint manufacturers. Lawsuits are still pending in municipalities in California and Ohio.
Rhode Island Chief Justice Williams noted that if the court upholds the verdict, it would be the only state to endorse the public nuisance theory in lead-paint litigation.
“No other state has signed onto this,” Williams said. “No other state.”
Alan J. Mensh, a partner at Ashcraft & Gerel in Baltimore, who tries individual lead-paint personal injury cases, said the public nuisance theory – which sparked a new wave of lead-paint litigation – has had little success.
“It has failed in just about every single place,” he said.
Last year, the Missouri Supreme Court rejected the city of St. Louis’s public nuisance claims based on “market share liability.”
In its opinion, Missouri’s highest court said: “Even assuming that the city could prove – via marketing evidence or something else short of product identification – that a particular defendant held a certain share of the lead paint market in the city at the relevant time, or even if it could prove because of the defendant’s market share there was a statistical probability its paint was in a certain percentage of the properties at issue – that would not establish the particular defendant actually caused the problem. Absent product identification evidence, the city simply cannot prove actual causation.” (City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007).)
The Rhode Island Supreme Court’s ruling – which is expected in early July – will have a major impact on future lead-paint public nuisance claims, Mensh predicted.
“A lot is at stake here,” he said. “It could have a chilling effect on other states if the [Rhode Island] Supreme Court rejects it. There are other states that are adopting a wait-and-see attitude to see what happens.”
Lead paint was banned in 1978 from homes in the U.S. after studies showed children who inhale lead-paint dust or eat lead-paint chips can suffer brain damage and other problems.
