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In Rhode Island, campaigning on failure



Rhode Island Attorney General Patrick Lynch, a Democrat running for governor, is actually campaigning on having lost a lawsuit. From AP's report on a candidate forum, "6 Rhode Island candidates for governor discuss childhood poverty at interfaith forum":

When the candidates were asked about protecting children, Democrat Patrick Lynch touted his record as two-term attorney general, including suing former lead paint companies for making a toxic product.

The state won a jury verdict in 2006 that could have cost three companies billions of dollars, but the decision was overturned two years later by the state Supreme Court.

"It's still used for political potshots, but I was the only one who stood up," Lynch said.

Stood up and continued the legally suspect public nuisance lawsuit started by Lynch's predecessor, AG Sheldon Whitehouse, before finally losing! (Supreme Court opinion here.)

State of Rhode Island v. Lead Industries Association, Inc., et al. case is in the news again this week because the Senate Judiciary Committee on Thursday will hold a hearing on the nomination of John J. "Jack" McConnell, Jr., to be U.S. District Judge for the District of Rhode Island. McConnell is the Motley Rice attorney who, on a contingency basis, "led the trial team representing the State of Rhode Island in the public nuisance litigation against the major former manufacturers of lead paint."

The U.S. Chamber of Commerce's Institute for Legal Reform just issued a statement opposing McConnell's nomination. Lisa Rickard, ILR President, said:

In addition to earning a lackluster rating from the American Bar Association, Mr. McConnell has defined his plaintiffs' lawyer career by suing employers based on controversial legal theories. For example, he has spent a large part of the past decade advancing a misguided interpretation of the public nuisance theory in lead paint litigation, which was rejected by four state supreme courts, including the unanimous rejection by the Rhode Island Supreme Court.

Mr. McConnell's ability to render fair and impartial rulings, especially with regard to business defendants, should also be questioned in light of millions of dollars in future annual payouts he will recover from an organization closely tied to his current employer, the Motley Rice plaintiffs' lawyer firm.

Sherwin-Williams and the paint manufacturers were ably represented by Charles Moellenberg of the Pittsburgh office of Jones Day. As it happens, Moellenberg and an associate, Leon F. DeJulius Jr., have a new article in The National Law Journal, "Remove the tort liability muzzle," with the secondary headline, "Courts should not allow juries to consider a corporation's protected speech as a tort." Also on the subject:

UPDATE (4:50 p.m.): Daniel Fisher, a senior editor at Forbes, follows up on the Chamber release, "Chamber Paints McConnell Nomination An Outrage," reminding us of the tobacco angle:

McConnell also cashed in on the biggest tort bonanza in history, the tobacco settlement. According to financial statements he filed with Congress as part of this nomination, the Motley Rice attorney anticipates "deferred compensation for work performed and completed of approximately $2.5 million to $3.1 million each year through 2024." That would be his share of the $500 million a year in fees -- $14 billion in all -- that private lawyers will reap for negotiating a settlement that locked in the market share of cigarette maker Philip Morris and ensured its profitability through the next millennium. But I digress.

UPDATE (5:10 p.m.): From The Providence Journal, McConnell's Senate questionnaire.

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.