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RI lead paint ruling: more reactions

Jane Genova continues to solicit and publish (anonymous) reactions and opinions from professionals who've followed the long-running Rhode Island suit (recent coverage here and here). A few excerpts:

"Long-term lead-paint watcher" with law degree:

From what I have observed the likely course of events is that the private law firm of Motley Rice explored where to file a lawsuit against the former lead paint industry. Not all states or cities are equally suited for this kind of litigation. The legal scout probably, as with the tobacco litigation, sought out a venue where those in the leadership might have weighty political ambitions. A plus would be if those ambitions required campaign contributions in order to be realized.

...Another challenge was to get around the reality that although there were laws on the books requiring property owners to maintain lead-safe dwellings those laws were not being enforced. As those who followed the RI lead paint trial might recall, Brown University identified about 1200 properties and landlords where 95 percent of the lead-paint hazards existed in Providence, for example.

The jury during the trial did not have, I contend, a true understanding that this was a landlord problem and the solution was already in-place, but neglected, for dealing with it. Enforcement could have been zealously done.

"Brand name Beltway attorney":

In RI, the state could not sue paint manufacturers, per se. That's because there is in the state an eight year Statute of Repose on the sale of products which "improve real property," including paint. Thus, the "they" putting together the complaint had to sue a small group of large companies which purportedly produced and sold "lead products for paint." As you will recall, the trial is officially about lead pigments, not lead paint per se. The problem for the judge was that there was absolutely no proof that any of these companies did so in the state of RI. That was hammered home again and again by the defense teams during RI lead paint trial II. No evidence, or as NL Industries lead attorney Don Scott put it: NADA.

"Legal expert" characterizing the Rhode Island Supreme Court, where the action is likely headed next:

...not a court which would be considered an "activist" one. ...[but] the Court is likely to give deference to the RI legal community at large and considers standing and respect within that community to be very important. ...as most of us lead paint watchers know, RI is an old boys network in many ways.

Another attorney, non-practicing:

In order to actually receive any money for abatement, the state will have to conduct more specific discovery on the actual number of lead-unsafe properties and the degree to which they present a health hazard. That will be something which the state fought earlier against because the defendants wanted to have that evidence for trial.

All of a sudden, the state will need to argue in favor of that sort of discovery, or try some sort of magic act to get a Special Master to present an abatement plan which includes dollar figures without specifying the extent of the hazard.

Another of Genova's sources, a Washington D.C. attorney, says it's vital to recall that the Rhode Island Supreme Court "is holding in abeyance [i.e., has not yet ruled on] the constitutional challenge of the contingency fee arrangement between the state attorney general and private law firm Motley Rice." And a financial source following the industry is actually "pleased" with the ruling, which allegedly helped "smoke out" issues for appeal.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.