Results matching “"rhode island" paint”

Rhode Island lead paint: big win for defense - PointOfLaw Forum

Word is coming in that the Rhode Island Supreme Court, reversing a lower court, has ruled against the creative public nuisance theory suit seeking to hold companies that made lead paint and pigments decades ago liable for billions of dollars in housing cleanup costs. Ted is also covering the story at Overlawyered. (And see Mike Krauss's post just below.)

More 10:30 a.m.: The court was unanimous and ruled "that the lawsuit should have been dismissed at the outset". Defendants now have a statement up:

"Today's ruling is a landmark victory for common sense and for responsible companies that did the right thing," said Charles H. Moellenberg, Jr., an attorney for The Sherwin-Williams Company, speaking on behalf of defendants Sherwin-Williams and Millennium Holdings, Inc. "This case never should have been filed - it was factually wrong and legally flawed. A company should not be held liable when there is no proof that it did anything wrong. It has taken nine years and two juries, but the Supreme Court's decision today puts public nuisance law in Rhode Island squarely in line with the overwhelming majority of jurisdictions of the United States."

For the aromatic politics behind the suit, including the role of South Carolina law firm Motley Rice (formerly Ness Motley), see OL, Jun. 7, 2001. For some background on the disputed epidemiology behind the controversy, see OL, Jun. 8-10, 2001. Eight and a half years ago, flush with billions in tobacco and asbestos fees, Ron Motley vowed, "If I don't bring the entire lead paint industry to its knees within three years, I will give them my [120-foot] boat".

Associated Press reports that the Rhode Island Supreme Court has unanimously overturned a 2006 jury verdict (the only one ever obtained against them) against Sherwin-Williams, NL Industries Inc. and Millennium Holdings, former manufacturers of lead paint.

A jury found all three liable in 2006 for "creating a public nuisance" by manufacturing their then-legal product. The companies would have been required to clean up hundreds of thousands of homes built before 1978 (when lead paint was banned), at a cost of billions.

The high court found that the trial judge should have dismissed the suit since the state had failed to prove that the presence of lead paint was a public nuisance. The requirement of wrongdoing seems finally to have been upheld in the Ocean State.

The manufacturers had also noted that Rhode Island never presented any evidence that their products were used in any Rhode Island home or had even been sold in the state.

Many of us have written about this abuse of tort law. Neither wrongdoing nor causation was ever established here. Lead poisoning is the result of ingestion following poor maintenance, and typically also results from poor childhood supervision. Holding companies liable because they happen to still exist, even though they have not wrongfully and proximately harmed anyone, is a perversion of tort law. I look forward to reading the Rhode Island decision.

Lead paint and the AGs: notable by their absence? - PointOfLaw Forum

This spring sixteen state attorneys general filed an amicus brief with the Rhode Island Supreme Court in support of the state's public nuisance suit against former lead paint manufacturers, a dubious cause if there ever were one. The roster of signers includes quite a few AGs whose closeness to trial-lawyer interests has caused us unease in the past, including Drew Edmondson (Oklahoma), Darrell McGraw (West Virginia), Beau Biden (Delaware), Dustin McDaniel (Arkansas), Jack Conway (Kentucky), and since-disgraced Marc Dann (Ohio). Rounding out the sixteen are William Sorrell (Vermont), Steven Rowe (Maine), Gary King (New Mexico), Hardy Myers (Oregon), Robert Cooper (Tennessee), Mark Bennett (Hawaii), Mark Shurtleff (Utah), Catherine Cortez Masto (Nevada), and Alicia Limtiaco (Guam), along with one from whom we certainly would have expected better, Bill McCollum (Florida).

What may actually be most interesting about this list is who's missing. No Andrew Cuomo (New York) or Richard Blumenthal (Connecticut). No Jerry Brown (California) or Lisa Madigan (Illinois) or Martha Coakley (Massachusetts) or Douglas Gansler (Maryland). Maybe there's some part of the story we're missing, and some or all of these AGs are still destined to weigh in on the wrong side. But assuming they won't, let's take this opportunity, for which there not that many occasions on this site, to congratulate the attorneys general of New York, California, etc. for their good sense and good judgment.

Around the web, June 6 - PointOfLaw Forum

  • Yes, the car crash may have been shown fake, but that doesn't mean insurer is entitled to summary judgment [Ted at OL on New York case]
  • "Green Our Vaccines" is a new slogan promoting some bad old ideas [Orac, more, more, etc.]
  • Among several reasons doctors are so slow to adopt email, one is you-know-what [MedRants]
  • After furor in NY press over lawyers' snagging rich state pensions based on part-time work for school districts, class action filed -- against those lawyers? -- no, on their behalf [Newsday]
  • Use of miniature Dutch Boy figurines as promotions among many advertising and trade-association practices assailed by plaintiffs in Rhode Island lead paint case [Genova]
  • Blumenthal declares victory in settlement with Infectious Disease Society of America over Lyme treatment guidelines; apparently it's no conflict of interest when the Connecticut AG does the bidding of "chronic Lyme" camp [Courant, Journal News, earlier]
  • John Stossel on why we need loser-pays [syndicated]

Around the web, June 4 - PointOfLaw Forum

  • In Scruggs scandal's Peters-DeLaughter branch, Peters is said to be working with prosecutors [Brumfield, NEMDJ via Folo, more]
  • Class Action Blawg has been rounding up weekly highlights on its subject [latest is the ninth]
  • Anthony Sebok predicts defense win, but maybe not conclusive one, in Rhode Island lead paint public nuisance case [FindLaw first and second parts, Ted @ OL, Genova, interview with Sebok there]
  • San Francisco and Hagens Berman team up to lead municipal drug-reimbursement onslaught against wholesaler McKesson, a SF company [UCL Practitioner, earlier from Carter]
  • Plaintiff's lawyers have put more than $2 million into California political races this election cycle [CJAC]
  • Roger Parloff on implications of Merck's latest Vioxx wins [Fortune "Legal Pad"]
  • You'd think Fieger acquittal would qualify as a national story given the big hole it would seem to blow in McCain-Feingold [OL and again]

Pretty good coverage all the way around, which is to say, both sides are included and the plaintiffs -- the three lead-paint manufacturers -- had their arguments represented fairly. From what little we were able to watch, a good exploration of the legal issues by the justices.

And again, we commend the coverage by Jane Genova at Law & More. This post seemed to hit the mark, including the observation:
I thought I was hearing wrong when one the of Justices cut Motley Rice attorney Fidelma Fitzpatrick short when she was starting her usual rant about lead paint is bad. I looked over to the man sitting next to me. He was bug-eyed. So, we both hadn't heard wrong. it was going to get a lot more intense.

The smart four men they are - one justice recused - they were going to find a narrow passageway through the public nuisance and contingency messes through questions of law. That's what they wanted. The attorneys representing the defendants Sherwin-Williams, Millennium Holdings and NL Industries and acquitted Atlantic Richfield stuck to the points of law. The plaintiff representatives did not. They came prepared with stylized rhetoric and kept to the script.

The court has archived the hearing, which you can watch it here.

Rhode Island Lead Paint Hearing Starts Momentarily - PointOfLaw Forum

The Rhode Island Supreme Court hears arguments today in an appeal from three paint manufacturers, sued by the state for creating a public nuisance by once selling lead paint, generally.

In a novel move, the court is broadcasting the arguments online, starting at 9 a.m.

The best blogger on the case is Jane Genova at Law and More. Reacting to the John Edwards endorsement of Obama yesterday, she considers the possibility of an Attorney General Edwards and observes:

To many he didn't seem like a good fit for the VP slot but a terrific one for the AG one. And that had tort reformers worried.

For just this reason tomorrow's Rhode Island Supreme Court lead paint public nuisance looms even more important in assessing the strength of the plaintiff bar in the U.S. If the RI SC Justices overturn the verdict for the state and acquit defendants Sherwin-Williams, NL Industries and Millennium Holdings, that could signal a significant setback for everything from class-action suits to novel legal theories such as public nuisance.

The National Association of Manufacturers' materials -- including an amicus brief -- are available here.

UPDATE The court has web-archived the four-hour hearing. You can watch it here.

Around the Web, April 29 - PointOfLaw Forum

  • Loyola Law Professor Rick Hasen, who blogs at, has numerous links with reaction to yesterday's Supreme Court ruling in the Indiana voter ID suit. His initial analysis is here. John Fund of The Wall Street Journal is the leading journalistic commenter on voter fraud, and in his "A Victory Against Voter Fraud," he argues, "The Supreme Court had to deal with the claim that such laws demanded the strictest of scrutiny by courts, because they could disenfranchise voters. All nine Justices rejected that argument."
  • The Journal also editorialized.

  • From The Recorder, via "The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry."
  • A new tort reform group to be launched Wednesday in Missouri, the Missouri Justice Alliance, a project of the Missouri Chamber Legal Foundation. Judging by the media advisory, it's quite the event, even featuring Chris Manning of Manning & Sossamon, the D.C. attorney who defended the Chungs in Judge Roy Pearson's $54 million lawsuit over misplaced suit pants. And a satellite feed for a local news conference...huh. The key lobbying target is HB2241, entitled, "Changes the laws regarding merchandising practices, the requirements for maintaining an action for unlawful merchandising practices, and the qualifications of expert witnesses in civil actions."
  • The Chamber's LegalNewsLine story, "Lead poisoning at new low in Rhode Island," highlights a new state study, "Childhood Lead Poisoning in Rhode Island." And in New Jersey, the Star-Ledger reports: "Gov. Jon Corzine today is expected to sign an executive order on lead abatement after accepting a report from the state Public Advocate on the dangers of lead paint."
  • Michigan is the latest Legislature to see an outbreak of insurance companies versus trial lawyers (labor, consumer groups, etc.), in this case over a bill that would motorists to choose less expensive insurance coverage. From AP: "Michigan is the only state to require unlimited personal injury protection benefits, which policyholders pay for through a $123 annual fee per vehicle. Legislation introduced last week in the state Senate would let motorists choose medical coverage worth between $50,000 and $400,000, or continue paying for unlimited coverage through the Michigan Catastrophic Claims Association." The Detroit Free Press has more about this effort by a new group, "Drivers for Savings."
  • Today's Diane Rehm show (WAMU in Washington and nationally broadcast on NPR stations) examines the issues of bisphenol A (BPA) in plastics. The guests are stacked on the public health, big threat, regulate/ban now! side, but at least Steven Hentges of American Chemistry Council is there to respond. (Program details.) We wrote about the issue and biased news coverage in this post.
  • In Rex Morgan, M.D., news, TV-adverting attorney Max the Ax has now had a news conference to attack the local doctors and hospital for failing to stop an outbreak of drug-resistant staph infections.

The Pawtucket Red Sox Play on Natural Grass* - PointOfLaw Forum

From Ryan Young, blogging at The American Spectator:

Here's one for the annals of overreaction: Fields made of artificial turf are being investigated as major health hazards because some of them contain lead.

Now, fans and players alike have hated artificial turf for years. Purists don't like the fake-looking fields. Old-fashioned grass stains on a player's jersey from a diving catch or a hard tackle are badges of honor, worn with pride. But lead poisoning? That's a new one.

There's a good reason we haven't heard about this problem before. There is no evidence of synthetic fields causing lead poisoning in even a single athlete. Anywhere. Ever.

In other leadigation news, the indispensable Rhode Island blogger Jane Genova has a new post up at Law and More, contemplating "RI Lead Paint III - That's What Smart Money Is Betting."
Since both the defendants and the plaintiff claim errors by the trial court, a sweet compromise would be a new trial. In that new trial, the plaintiff could play it more conservative and request compensatory damages vs. abatement. In its brief, the state makes a persuasive argument, rooted in liberal ideology, why state agencies should be reimbursed for the millions plowed into diagnosing, treating and preventing childhood lead poisoning. In addition, the private counsel hired on a contingency basis - Motley Rice - will finally get paid - something. The 16-something percent the firm would derive from the compensation damages is better than nothing.
She reports the scuttlebutt that the defendants have set aside funds anticipating yet another trial round.

* McCoy Stadium, also known for its expansive foul territory.

Around the web, March 31 - PointOfLaw Forum

  • Recoupment litigation like Alaska's against Zyprexa is the equivalent of an unlegislated tax on health care sector, says Beck [LegalNewsLine]
  • Twenty-three Long Island school districts improperly kept private lawyers on the books as public employees, sometimes as fictitious full-timers [Newsday via Greenfield; earlier on OL]
  • State of Rhode Island files its brief, festooned with amici, in lead paint nuisance case appeal; state high court will stream live video of May 15 oral argument [ProJo, Genova, Pincince/RILJ]
  • Canada now has third-party litigation finance, as well as a mounting class action docket [ABA Journal, Financial Post]
  • Drug patent bailout bill might also be helpful to Ropes & Grey/Fish & Neave [T. Carney/Examiner and more]
  • New law blog at Slate includes Dellinger, Kerr, Lithwick, Kmiec, Bazelon, others ["Convictions"]

State attorneys general often abuse their power. Mississippi Attorney General Jim Hood's sweetheart deals with campaign donors, which Ted describes, are just one example.

Last year, the Competitive Enterprise Institute issued a study chronicling abuses by state attorneys general called "The Nation's Top Ten Worst State Attorneys General." Ranked as the three worst AGs were Connecticut's Richard Blumenthal, California's Bill Lockyer, and New York's Eliot Spitzer.

Hood narrowly escaped being included in that study's top-ten list (CEI viewed about a dozen other AGs as being even worse than Hood), but perhaps he should have been. Hood's hiring of campaign donors to bring lawsuits in the name of the state in exchange for lucrative contingency fees is a disturbingly common practice among AGs.

The Wall Street Journal suggests that the Democratic Attorneys General Association (DAGA) more or less laundered money for Hood, giving Hood an amount of money strikingly similar to the amount it received from law firms that earlier received lucrative work from Hood's office. "In 2007, law firms that have benefited from Mr. Hood gave the organization $572,000, and in turn the group wrote campaign checks in 2007 to Mr. Hood for $550,000."

Last year, the president issued an executive order banning federal agencies from hiring lawyers on a contingency fee. The abuses by Hood and other AGs, like Rhode Island attorney general Patrick Lynch, demonstrate why that executive order made sense -- and why state legislatures should follow suit in banning such contingency fees.

Such contingency fees not only foster corruption, they also violate state constitutional separation of powers guarantees, result in perverse incentives and overreaching in litigation, and cause conflicts of interest.

Around the web, February 4 - PointOfLaw Forum

  • Lots of amicus activity in Rhode Island lead paint appeal [ProJo, Genova]
  • Trial lawyers "in complete control" of Kentucky lower house, laments president of state senate [Lexington Herald-Leader]
  • Usually it's corporate defendants tripped up by charges of failing to produce discovery docs, but look what happened to Milberg Weiss [NLJ]
  • Speaking of which, official Mel Weiss bio still lists him as vice chair of lefty Drum Major Institute, though DMI seems to have dropped him into memory hole [ShopFloor; more on Milberg-DMI connection]
  • Duck for cover, New York AG Cuomo talks of using brass-knuckled Martin Act against Wall Street [DealBreaker]
  • Some lawyers believe women on juries judge women more harshly. True? [Reed]

Lead paint lawsuit news - PointOfLaw Forum

The briefing in the Rhode Island appeal is scheduled: briefing for appeals and cross-appeals of the main judgment is due January 31, and oral argument will be May 15. Richard Faulk and John Gray have a good overview of the problems with the Rhode Island litigation for WLF.

In Ohio, a referendum effort to repeal the anti-market-share-liability bill appears to have failed to gather the signatures needed.

The industry appears to have its own website which, while not as comprehensive as it could be, includes a good deal of data on the status of various litigations.

And, of course, there is lots of Point of Law coverage and coverage at Legal Newsline. The Institute for Legal Reform also has a number of papers on the public-nuisance phenomenon, including an excellent Washburn Law Review article by Victor Schwartz and Phil Goldberg.

R.I./duPont lead pact, cont'd - PointOfLaw Forum

More on the controversy covered here and here, about the terms reached by duPont in its pact with Rhode Island attorney general Patrick Lynch and many-tentacled law firm Motley Rice. Were earmarks of $2.5 million to a Boston hospital and $1 million to Brown University designed to advance the private interests of the law firm and the AG, respectively? Sherwin-Williams, which cut no deal with the state and remains a defendant, has now asked a judge to undo the two donations. LegalNewsLine and Jane Genova cover the story. (More: Hans Bader).

In other news of lead paint litigation, the Thomas case in Milwaukee has now gone to the jury. Update: defense verdict.

Maureen Martin of the Heartland Institute has a very fine op-ed in today's Providence Journall on the damages plan developed for Rhode Island's groundless lead paint public nuisance suit.

A snippet: Under the plan, windows will almost always be replaced with new, energy-efficient ones, and new drywall will cover existing lead-based paint. The plan can call for new doors, new flooring, new kitchen cabinets, and new stairways, banisters, spindles and newel posts. If these items are unique, they will be stripped and refinished rather than replaced. If the housing unit is part of the state historic-preservation program, replacements will have to be custom-made. The interiors will then be repainted. The choice of color is up to the homeowner. Surprisingly, the state doesn�t include Martha Stewart as a color consultant.

Courts thin out lead paint lawsuits - PointOfLaw Columns

By Jim Copland

This piece originally appeared in the Washington Examiner, 09-19-07.

This summer, government-sponsored lawsuits alleging that paint manufacturers created a "public nuisance" by making paint with lead pigment in or before 1978 met stinging courtroom defeats in major decisions by the Missouri, New Jersey and Ohio supreme courts, as well as a jury verdict in Wisconsin.

These adverse rulings marked a major reversal of fortune for the litigation industry, which viewed such suits as a potential heir to the litigation industry's multibillion-dollar asbestos and tobacco business lines after a Rhode Island jury had ruled in 2006 that paint companies had to shoulder that state's lead paint "abatement costs," estimated to be as much as $3 billion.

While nominally filed on behalf of states and municipalities, the lead paint suits are the fruit of deals trial lawyers cut with government officials, who gave the private lawyers control of state litigation for a share of any proceeds. The lawyers' strategy has mirrored what they used in extracting billions from the tobacco suits to recoup states' health care expenses—unsurprisingly, since the lead paint litigation involves the same lawyers...

Enriching big political donors with the state's multibillion-dollar contingency-fee litigation clearly has the potential for corruption...

But the problems with public lead paint litigation run far deeper. Although lead poisoning is undoubtedly harmful, lead paint litigation has been burgeoning even as the risk has been approaching the nonexistent. Lead paint has been banned since 1978, and paint companies voluntarily limited lead for indoor paint as early as 1955.

That fact, in addition to reductions of lead in drinking water and the elimination of leaded gasoline, has caused a sharp drop in lead-exposure levels. Only 1.6 percent of young children are today exposed to lead levels above the Centers for Disease Control's current threshold, down from 7.6 percent in 1997 and a 98 percent reduction from the late 1970s.

Read the full report, "Judicial Lead-ership," on

Jim Copland is the director of the Center for Legal Policy at the Manhattan Institute.

Rhode Island: paint cos. should pay $2.4 billion for cleanup - PointOfLaw Forum

The lead paint defendants, who lost an earlier trial over nuisance liability in a case now at the remedies stage, called the demand "ridiculous":

If the plan was adopted, he said [Millenium Holdings lawyer Scott Smith], it would benefit the very landlords who have done the least to maintain their properties and protect children.

What�s more, the state abatement plan would employ twice as many workers as Boston�s Big Dig and cost 4.5 times the state�s largest public works project, the combined sewer overflow system in Providence � all while the rate of poisonings plummets....

The report acknowledges that lead poisoning has dropped sharply in Rhode Island in recent years. In 1992, 29.6 percent of Rhode Island children were poisoned before they reached age 6. Last year, the number dropped to below 2 percent � or 790 children poisoned or re-poisoned.

If it seems hard to grasp that fifteen years ago fully 29.6 percent of the state's children would have counted as "poisoned" by today's standards, perhaps one reason is that the concept of "poisoning" has proved susceptible to retroactive redefinition over the years, as blood-level triggers are reduced to err on the side of caution. More: Jane Genova.

Trial Lawyers, Inc. Update: Judicial Lead-ership - PointOfLaw Forum

Our regular readers are well aware of recent judicial and jury decisions slamming the door on lead paint public nuisance abatement suits--in Wisconsin, Ohio, New Jersey, Missouri, and California.

For those who haven't noticed the box to the right, the Manhattan Institute's Center for Legal Policy has released a new Trial Lawyers, Inc. update summarizing these trends, as well as the history of such suits leading to last year's staggering Rhode Island lead paint verdict. A quick preview:

The spate of recent commonsense rulings throws into serious doubt earlier worries that lead paint might become the next asbestos. All eyes will now be on Rhode Island, to see whether its supreme court reverses the multibillion-dollar verdict or upholds the state's lead paint public nuisance claim contrary to the fundamental tort requirements linking injury to wrongdoing by a specific actor.

Tort Travesty - PointOfLaw Columns


This piece originally appeared in the Wall Street Journal, 5-18-07

The terse four-page judicial order handed down in a California courtroom last month hasn't made much of a ripple among commentators. But if it stands as precedent following the near-inevitable appeal—and if states and municipalities also follow President Bush, who signed an executive order on Wednesday barring the federal government from entering into contingency fee agreements with trial lawyers—the ruling by Superior Court Judge Jack Komar might slow down the destructive litigation trend of ambitious private lawyers' enlistment of government as a client.

Some background: In the case of County of Santa Clara v. Atlantic Richfield, a number of California counties and cities filed suit asking that lead paint manufactured and sold decades ago be (retroactively and creatively) declared a "nuisance" so that the paint's original makers could be ordered to pay for its removal. As usual in such suits, the localities had hired private lawyers on a promise to share in the winnings if a recovery was made.

Long regarded as ethically suspect if not unthinkable, the public-client contingency fee can be traced back to a case in the 1980s when the state of Massachusetts decided to hire private lawyers to pursue claims over asbestos removal. The innovation quickly spread to other states and issues, most notably the late-1990s tobacco-Medicaid crusade which resulted in multibillion-dollar payouts to both the states and their lawyers.

Trial lawyers love these deals. Even aside from the chance to rack up stupendous fees, they confer a mantle of legitimacy and state endorsement on lawsuit crusades whose merits might otherwise appear chancy. Public officials find it easy to say yes because the deals are sold as no-win, no-fee. They're not on the hook for any downside, so wouldn't it practically be negligent to let a chance to sue pass by?

Now, only two decades later, trial lawyers representing public clients on contingency fee are suing businesses for billions over matters as diverse as prescription drug pricing, natural gas royalties and the calculation of back tax bills. The South Carolina law firm now known as Motley Rice moved into the state of Rhode Island and quickly made itself the No. 1 political donor there, just as it was winning a contract from then-Attorney General Sheldon Whitehouse (now a U.S. senator) to file the first action on behalf of a state against former lead paint makers.

Mayors of over 30 cities signed up for a gun-control-through-legal-coercion campaign of suits against firearms makers so abusive and unpopular in other parts of the country that Congress stepped in to pass a law against it. Authorities in New Jersey, California and elsewhere have hired percentage-fee lawyers to pursue groundwater contamination claims; in the resulting litigation, other environmental aims have tended to be subordinated to the overriding goal of maximizing deep-pocket dollar payout.

But the ethical doubts about the practice haven't gone away, which brings us to Judge Komar and his April 4 ruling in the lead-paint case. The defendants were able to cite a 1985 precedent in which the California Supreme Court ruled contingent fee representation improper as "antithetical to the standard of neutrality that an attorney representing the government must meet when prosecuting a public nuisance abatement action." Agreeing that the case was on point, Judge Komar granted a motion to disqualify the private lawyers.

The principle here isn't hard to grasp. Lawyers who act on behalf of government as distinct from private clients come under special ethical obligations of impartiality. If a lawyer claiming to speak in the name of the people charges you with misconduct, his judgment on whether to drop the charges should not be clouded by the prospect that one-third of any penalties extracted from you would drop into his own private pocket.

Such at least is the logic almost universally accepted when it comes to criminal prosecution. Many court opinions confirm that public prosecutors must not be given a financial stake in the success of the actions they press. In a 1987 trademark-infringement case, for example, the U.S. Supreme Court held it a violation of due process for the government to delegate control of a criminal contempt action to a nongovernment party with a financial stake in the outcome.

What about when the fines or penalties are civil in nature? That question came up in a 1985 case from the city of Corona, Calif. The city had enacted a civil nuisance statute aimed at closing adult bookstores, and then to enforce it hired James Clancy, the attorney who'd drafted the statute, with a bonus to be paid if he succeeded in closing the stores. But the high court in Sacramento disqualified Mr. Clancy, saying that such a proceeding "demands the representative of the government to be absolutely neutral" and that "any financial arrangement"—such as a contingent fee—"that would tempt the government attorney to tip the scale cannot be tolerated."

The California counties and cities that had filed the lead-paint suit—including some of the nation's most populous, with some of the richest tax bases—absurdly tried to plead poverty, suggesting it would prove a hardship for them to hire lawyers on hourly fees. Judge Komar rejected this argument. In reality state and municipal plaintiffs often have more extensive resources than the businesses they sue, as when cities like Boston and Atlanta sue family-owned gunmakers. It's also a practical irrelevance, since smaller governments can and do band together in groups to facilitate litigation that is of common benefit.

The fact is that most such suits are dreamed up by the private law firms and sold to the local officials, not vice versa. Competitive bidding is the exception rather than the rule in retaining the law firms, which routinely recycle handsome donations to the campaigns of the mayors, attorneys general and other officials who hire them. Pay-for-play is so routine that it hardly raises even a shrug anymore. When government legal officers refuse the overtures and instead employ their own staff attorneys to handle such suits, they can face bitter resentment and political pressure for not playing the game in the expected way.

On its face the Santa Clara ruling (like the Clancy case before it) applies only to nuisance-abatement cases, and it's uncertain to what extent courts will agree to extend its logic to other sorts of suits filed by states and municipalities. Moreover, a number of courts in other cases have turned down defendants' motions challenging such fee deals. So it's not the beginning of the end for today's trial-lawyer public-entity alliance. It's more likely just the beginning.

Milwaukee lead-paint suit goes to trial - PointOfLaw Forum

Trial began Tuesday in a state courtroom; the Milwaukee Journal-Sentinel's coverage is here, and Jane Genova is again blogging the day-by-day developments, as she did in the previous Rhode Island trial. This time around the defense is apparently going to lay greater stress than previously on the government's own role in promoting the material. Quoting the Journal-Sentinel:

After lead paint was banned in Baltimore in 1951, the first ban of its kind in the country, [defense lawyer Donald Scott] said, NL and the Lead Industry Association initiated a labeling standard.

"But the City of Milwaukee continued to specify lead paint for its architects and projects for the next 20 years," Scott said.

As we have had occasion to note elsewhere, a surprising number of products later sued over as defective and injurious do turn out to have been promoted for use by the government itself.

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