New England Biz Law Update
In a closely watched case, Rhode Island’s highest court recently dismissed a public nuisance suit filed by the state nine years ago against three former manufacturers of lead pigment used in residential paint.
The court voted 4-0 to overturn a verdict from two years ago finding that lead-based paints sold decades ago created a public nuisance by poisoning children throughout Rhode Island. (State v. Lead Industries Association, No. 2004-63.)
The court held that the public nuisance claim “should have been dismissed at the outset” because the state cannot allege the defendants’ conduct interfered with a public right, or that defendants were in control of lead pigment at the time it harmed children in Rhode Island.
A jury in 2006 found that 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.
The public nuisance theory was widely viewed by plaintiffs’ lawyers as an innovative litigation strategy that could be used successfully by other local and state governments against the paint industry.
But lead paint public nuisance claims failed to sway a jury in Wisconsin. And Supreme Courts in Missouri and New Jersey both rejected the public nuisance claims. Public nuisance cases are pending in Ohio and California.
In a written statement, Charles H. Moellenberg Jr., an attorney for Sherwin-Williams, called the Rhode Island ruling “a landmark victory for common sense and for responsible companies that did the right thing.”
“The case never should have been filed,” he said. “It was factually wrong and legally flawed. A company should not be held liable when there is no proof that it did anything wrong.”
John J. McConnell, a partner at Motley Rice in Providence, who was lead counsel for the state of Rhode Island, said in an e-mail that he was disappointed with the decision.
Children in Rhode Island “will continue to be poisoned by lead in paint,” he said, “and the companies that put the poisonous paint in Rhode Island have no responsibility for cleaning up the mess that they created in the first place.”
The decision “radically departs from longstanding public nuisance law by finding that the companies that originally manufactured and sold the poisonous paint have no responsibility for this public health crisis,” McConnell added.
In its decision, the court said: “[T]he 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. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law.”
The court also addressed the propriety of contingent fee arrangements between Rhode Island’s attorney general and outside attorneys.
“[T]here is nothing unconstitutional or illegal or inappropriate in a contractual relationship whereby the Attorney General hires outside attorneys on a contingent fee basis to assist in the litigation of certain non-criminal matters. Indeed, it is our view that the ability of the Attorney General to enter into such contractual relationships may well, in some circumstances, lead to results that will be beneficial to society – results which otherwise might not have been attainable.”
The court added that the Attorney General must retain absolute and total control over “all critical decision-making” in any contingent-fee relationships.
