Results matching “"rhode island" paint”

St. Louis wants to pursue lead paint action - PointOfLaw Forum

The Chamber-of-Commerce-backed LegalNewsLine has the details on the city's interest in employing a "public nuisance" theory of liability. And Wisconsin lawyers are filing more lead lawsuits against manufacturers following the Wisconsin Supreme Court's opening of the floodgates two years ago. For developments in Rhode Island, where Judge Michael Silverstein has refused a defense motion to delay the ordering of abatement, and Ohio, check Jane Genova's ongoing coverage.

Ohio files lead-nuisance suit - PointOfLaw Forum

For years Rhode Island was alone among the fifty states in its willingness to join the Motley Rice-led campaign against former makers of lead paints and pigments, but now Ohio attorney general Marc Dann has enlisted his office as a state plaintiff as well. (Cleveland Plain Dealer via Adler @ Volokh, Genova, Right Angle Blog). For earlier aspects of the Ohio lead paint story, including the state legislature's clear expression of disapproval of such actions, follow this link; for background on the Rhode Island suit, this one.

P.S. A related observation, from one of Jane Genova's informants: "By where Sherwin-Williams' stock is, Wall Street is betting that no money will be won by any state or city or lost by any former lead paint company."

Rhode Island lead levels declining - PointOfLaw Forum

"Elevated blood levels have been steadily declining in the core cities and in Rhode Island over the past decade" reports the state, which is good news, though news completely contrary to the claims made when litigating against lead paint companies.

Relatedly, Richard Faulk and John Grey have written for WLF on the abuse of nuisance law that occurred in Rhode Island.

RI lead paint ruling: more reactions - PointOfLaw Forum

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.

R.I. lead paint ruling, cont'd - PointOfLaw Forum

Hans Bader of the Competitive Enterprise Institute criticizes Judge Silverstein's ruling (see yesterday's post) and makes this point about one of the theories of liability in the case:

Moreover, the lead-paint lawsuit was based in part on speech by the lead paint trade association, the Lead Industries Association (LIA), which mounted a public campaign against a total ban on lead paint. That raises serious First Amendment problems.

The Noerr-Pennington immunity, a First Amendment doctrine recognized by both the U.S. Supreme Court and the California Supreme Court, immunizes companies and people from liability under the First Amendment for lobbying campaigns that would otherwise trigger liability. See BE&K Construction v. NLRB, 536 U.S. 516 (2002) (company immune from suit under federal law); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (citizens immune from liability under Fair Housing Act).

The Rhode Island judge tried to get around this by claiming that the jury did not punish paint companies for the LIA trade association�s speech itself, but rather only considered the trade association�s speech to show that individual paint companies �had knowledge of the LIA�s lobbying activities� and to shed light on the �purpose and character� of their actions.

That is a specious distinction. Similar reasoning was rejected by then-judge (now Supreme Court Justice) Samuel Alito in his decision in Pfizer v. Giles, 46 F.3d 1284 (3d Cir. 1995). In that decision, a federal appeals court overturned a trial judge�s refusal to dismiss a lawsuit against Pfizer, which manufactured asbestos, because the trial judge had relied on Pfizer�s membership in an asbestos trade association that engaged in lobbying, some of which was allegedly deceptive. That violated the First Amendment, which protects membership in a trade association that engages in protected speech, even if it also engages in some unprotected speech. (By contrast, there is no proof that the paint industry trade association engaged in any unprotected speech).

And Legal NewsLine has this article quoting Prof. Childs.

R.I. judge says paint makers must pay for cleanup - PointOfLaw Forum

Big, though expected, ruling yesterday in the long-running Motley Rice extravaganza: "A judge on Monday ordered three former lead paint manufacturers to clean up contamination in Rhode Island and said he would appoint a special master to advise him on exactly what the companies should be required to do. Lawyers and financial analysts have said the cleanup could cost more than $1 billion." (Associated Press; Providence Business News; ruling (197 pages!) in PDF format; statement on behalf of some defendants; Providence Journal blog). Judge Michael Silverstein denied the companies' request for a new trial; appeal is considered likely. At Law and More, Jane Genova quotes a Wall Street source who says the paint makers' stocks were not hammered too badly because the ruling had been widely anticipated, and because Judge Silverstein refrained from naming a high dollar figure. More coverage at Genova's site here and here. A blog called Rhode Island's Future crows about the ruling, its author Matt Jerzyk freely admitting that he is not the most detached imaginable observer ("Disclosure: I am a law clerk at Motley Rice.") And Byron Steir has a post here. For previous coverage at this site, see, e.g., here, here, here, here, here, here, here, here, here, here and here, and Jim Copland's column here. Previous coverage at Overlawyered can be found here, here and here.

P.S. David Nieporent, guest-posting at Overlawyered, analyzes the ruling as a case study in "litigation as Robin Hood-style wealth redistribution".

Five propositions on the election - PointOfLaw Featured Discussion

I wouldn't mind being proven wrong on any of these, but here are five tentative propositions on next Tuesday's vote:

1) Voters intend to punish Republicans for reasons that have little to do with litigation reform. I haven't run across any reports of campaigns in which a Democratic challenger has tried to make an issue of a GOP incumbent's support of the Class Action Fairness Act or med-mal reform, for example.

2) On the other hand, with a few exceptions as in the Pennsylvania Senate race, Republicans don't seem to be promoting national litigation reform as a campaign issue the way they did in previous cycles. One reason may be that it's hard to blame Democratic obstructionism when Congress and the White House have been in Republican hands so long, the GOP Senate having of course served as the longtime boneyard of federal legal reform proposals.

3) None of which makes the issue anything less than crucial as an underlying factor, sometimes behind the scenes and sometimes not, in races from coast to coast. It is lost on no one that Eliot Spitzer pulled off his meteoric rise by using the law to confront businesses. One cannot grasp the peculiar twists and turns in the Texas gubernatorial race except as reflecting the desire of prominent trial lawyers there to punish pro-reform incumbent Rick Perry by whatever means comes to hand. The issue remains hugely salient in statehouse politics from Tallahassee to Madison to Oklahoma City to Sacramento.

4) Even leaving aside the Spitzer example, we continue to live in the golden age of the activist state attorney general. Rhode Island's Sheldon Whitehouse, much criticized on this site for his lawsuits against former lead paint manufacturers, appears on his way to knocking off incumbent U.S. Senator Lincoln Chafee. Minnesota's Mike Hatch holds a narrow lead in his challenge to GOP incumbent Gov. Tim Pawlenty; Hatch's bad ideas have included suing companies that make cold medicines because meth abusers buy the stuff and cook it into their preferred drug. And Patricia Madrid of New Mexico, who has mounted a strong challenge to incumbent House member Heather Wilson -- among other races we'll discuss this week.

5) Of all the trends afoot, quite possibly the most significant as a setback for legal-reform prospects is one covered in today's NYT: Democrats are set to recapture control of many state legislatures from Republicans.

R.I./duPont lead pact: charity under scrutiny - PointOfLaw Forum

Catching up on a story that made headlines last month: in June of last year when duPont settled the state of Rhode Island's lead paint lawsuit rather than go to trial (OL 7/2/05), it agreed to furnish $12.5 million to charity, including $9 million to an outfit called Children's Health Forum. On closer scrutiny, the Children's Health Forum turns out to have extensive ties to the giant chemical company; per the AP, "It was founded by a lawyer hired by DuPont to work on lead poisoning issues; it received most of its funding from the Wilmington, Del.-based company and most of its board members have ties to DuPont." As for Rhode Island Attorney General Patrick Lynch, "The Associated Press reported in June that Lynch took campaign donations from people with ties to DuPont, including one from its chief negotiator while the deal was being discussed. Lynch says he did nothing wrong." Curiously, "Lynch and DuPont say the deal was not a legal settlement but simply an agreement." (Michelle R. Smith, "Nonprofit Set to Get $9M in DuPont Lead Paint Deal Has Close Ties to Company", AP/Law.com, Aug. 4).

Meanwhile, editorialists at the Wall Street Journal have suggested that an otherwise puzzling component of the charity pledge -- $2.5 million to Boston's Brigham & Women's Hospital -- might have been meant as a concealed boon for Motley Rice, the law firm which represented Rhode Island, and which had earlier pledged money to the hospital in association with its asbestos work ("Rhode Island Rhapsody" (editorial), Wall Street Journal, Aug. 16 (sub-only)). The editorial called forth a carefully worded letter from duPont which does not in fact contradict that theory (Aug. 23).

The Providence Journal (which it's nice to note is no longer behind a subscriber-only screen) covered the controversy here, and its deputy editorial page editor Edward Achorn penned a commentary on the Rhode Island Ethics Commission's decision not to open an investigation of AG Lynch. And Jane Genova covers the story here and here.

Lead paint lawsuit blogging - PointOfLaw Forum

Jane Genova, who has blogged intensively about the Rhode Island lead paint trial and its aftermath, now has a stand-alone blog devoted to the paint litigation and other legal issues, spun off from her regular blog.

RI lead paint sidelights - PointOfLaw Forum

Jane Genova, who has blogged so extensively on the Rhode Island lead paint case, continues to provide post-trial coverage. A few tidbits we didn't relay in our earlier posts: defense lawyers wanted to explore the evidence that the lawsuit was conceived by attorneys at Motley Rice and then presented to Rhode Island officials for them to karaoke as a "public health initiative"; but the judge ruled that a line of questioning alerting juries to this was improperly prejudicial. A Columbia public health professor who was providing expert testimony for the plaintiffs declined to explicate his research methods, but educated guesswork about them is not impossible. More on the experts here.

Lawyer Lead-ership - PointOfLaw Columns

James R. Copland

(Reprinted from City Journal, Spring 2006)

In its quest for profits, America's trial bar keeps finding new potential defendants, new theories of liability, and new ways to manipulate the political system. The lawyers' latest targets, paint manufacturers, find themselves under fire for lawfully making lead-based paint 30 to 50 years ago.

Concerns that such paint causes lead poisoning in children have led many states and localities to adopt "abatement" regulations, as any New York homeowner, landlord, or tenant well knows. The trial lawyers� new suits do not seek redress for injured children, however, but rather for the state, under the theory that lead paint generated a "public nuisance" and that the state needs money to clean it up in an estimated 240,000 contaminated homes. If this theory brings to mind the state-sponsored suits that led to the multibillion-dollar tobacco settlement, it should, because the tactics, and even some of the key players, are the same.

Last month, the lawyers hit pay dirt when a Rhode Island jury found three paint companies�Sherwin-Williams, NL Industries, and Millennium Holdings�liable to the state. Before getting to the seedy details, let's start with the scientific facts. Unlike tobacco, lead paint is a minor public health problem at worst. Yes, we now know that lead poisoning can impair children's neural development, though the level of risk is open to debate. Safety concerns resulted in the relegation of lead paint to outdoor use as early as the 1950s; by 1978, laws had banned it entirely.

Since the late 1970s, blood lead levels in children have fallen dramatically, owing partly to reduced lead-paint exposure, but mainly to the virtual elimination of lead in drinking water and automobile gasoline. Just how much safer are our kids today? Using the cautious threshold pushed these days by the Centers for Disease Control (ten micrograms per deciliter, much tougher than the 25-microgram level established for lead poisoning 15 years ago), the percentage of young children with elevated blood lead levels has fallen 98 percent. The most recent estimates from the National Health and Nutrition Examination Surveys show only 1.6 percent of children aged one to five above the CDC threshold, a far cry from the 77.8 percent who failed to meet the CDC's current standard in the late 1970s.
Such figures should be cause for celebration. But zealous public health advocates�often trial bar�funded�have continued to press for ever-lower lead exposure levels. In long-developed areas, such as northeastern cities, the presence of lead paint is substantially higher than in many parts of the country. But large local variations suggest a clear regulatory remedy. For instance, one study found that Providence, Rhode Island's children had three times the lead-poisoning level of those in nearby Worcester, Massachusetts. Unlike Rhode Island, Massachusetts requires that landlords abate lead paint in homes with children.

Rather than making low-income landlords clean up their act, however, Rhode Island chose to sue the companies that long ago legally manufactured lead paint. Notwithstanding the state's nominal position as plaintiff, it's important to realize that the trial bar itself is the driving force behind the lead-paint lawsuits, as it was when the states sued tobacco companies. Fittingly, the central player in the Rhode Island paint suit is the law firm of Ron Motley, one of the principal attorneys behind the tobacco suits. For its role in the Rhode Island lawsuit, Motley's crew stands to take home nearly 17 percent of any settlement.

How did Motley do it? Much in the same way that he and attorney Richard Scruggs scored the tobacco litigation: by co-opting political leaders. In the tobacco cases, Scruggs persuaded attorney general Mike Moore, his fellow Mississippian, to hire him and Motley to sue tobacco makers for smoking-related medical costs�after Scruggs contributed generously to Moore's campaign and flew him around for appearances in his private jet.

Motley has followed Scruggs's tobacco playbook to the letter. A South Carolinian, Motley began to take a keen interest in Rhode Island's notoriously corrupt politics. Opening an office in Providence, Motley's partner John McConnell became the state's Democratic Party�s treasurer. In the 2000 election cycle, their firm was the state�s largest political contributor, with over $500,000 for federal campaigns alone. Perhaps not so coincidentally, Rhode Island attorney general Sheldon Whitehouse appointed Motley's firm to be the state�s lawyers to sue paint manufacturers.

The resulting Rhode Island verdict makes a mockery of the basic principles of tort law. Typically, to win a lawsuit, there needs to be an injured party. Not here, where not a single injured party�or a single house constituting a "nuisance"�made it into the evidence. Typically, for liability, a plaintiff needs to show that the defendant caused its harm. Not here, where the judge instructed the jury that it could find the defendants guilty without even finding that any of the paint companies had manufactured any paint actually used in the state.

It's not yet clear how much the paint companies will have to pay Rhode Island. The good news is that the judge determined that the paint companies owe no punitive damages. Press reports and market reaction to the case have focused on that significant fact, not on the key finding of liability�which shows just how skewed the expectations for our legal system have become.

What's certain is that trial lawyers smell blood in the water, and other state attorneys general see an opportunity for cash. In addition to pending cases in New Jersey, Wisconsin, and Illinois, Massachusetts and Connecticut are now exploring paint suits, with the trial lawyers in the lead.

The Rhode Island Supreme Court has declined to settle, for now, a dispute over attorney fees in the state's case against former lead paint manufacturers, saying unresolved issues needed to be decided first.

The state hired private lawyers when it sued the lead paint industry in 1999 for creating a public nuisance by selling an unsafe product. The contingency fee contract entitled the lawyers to just over 16 percent of whatever the state received if it won the lawsuit.

A jury in February found three companies -- Sherwin-Williams Co., Millennium Holdings LLC and NL Industries, Inc. -- liable for creating a public nuisance and ordered them to clean up lead paint contamination in Rhode Island. JNOV motions, among others, are still pending. An appeal is expected if there is a judgment on the verdict

The court said it wanted to wait until those issues are resolved before deciding whether the state can honor its contract for attorney fees. The court appeared to acknowledge that important questions of due process and separation of powers are raised by the attorney general's delegation of power to private attorneys via the contingency fee.

The state has said the defendants might be on the hook for billions of dollars.

Miss. AG: they come to us with suits - PointOfLaw Forum

A casual admission, by Mississippi Attorney General Jim Hood, that private lawyers come to him to propose lawsuits that they'd like the state to have them file, not just vice versa:

They are hired on a first-come, first-served basis when they bring what Hood considers to be legitimate cases that they are qualified to pursue. They work on a contingency basis and are only paid if they win or settle.

(Charles Dunagin, "Hood defends hiring attorneys", McComb Enterprise-Journal, May 18).

While we're at it, here's Jane Genova with an anecdote about how it was the private lawyers in the Rhode Island lead paint case who approached the state with the idea of filing suit, and how the judge in the case ruled that it would be prejudicial to make the jury aware of that fact.

Paint litigation: its spreadability - PointOfLaw Forum

Although many suits on behalf of municipalities are continuing, former Maine Attorney General Jim Tierney, doyen of state AG activism, doesn't think any other state AGs are going to follow Rhode Island's in suing former paint and pigment makers. (Governing magazine; via Genova).

Judge fines R.I. AG for contempt - PointOfLaw Forum

The judge in the lead paint case fined Rhode Island Attorney General Peter Lynch $5,000 and held him in civil contempt for maligning paint makers in the media, in violation of the state rules of professional conduct and an earlier instruction by the judge. Lynch denies the charge. Jane Genova has more here and here, as does Peter Lattman.

The Vermont legislature passed a law making seed manufacturers strictly liable on a nuisance theory if farmers allow genetically modified seeds to enter others' property. Aside from the incentive for collusion to fake dispersal, the bill would have essentially made it uneconomical to sell such products in Vermont. (AP/Boston Globe, May 5 (via Steenson)). Having lost in the legislature, don't be surprised if lawyers attempt to achieve the same result in the courts—and cases like the Rhode Island lead paint nuisance verdict make that not entirely implausible.

Maryland lead-paint legislation - PointOfLaw Forum

In their campaign against companies that once made lead paint, trial lawyers have adapted a tactic used earlier in the tobacco and gun campaigns, namely to push for legislation making it retroactively easier to bring liability claims against manufacturers. Such legislation was floated a few years ago, unsuccessfully, in Massachusetts; this year the campaign has made a particular target of Maryland, a state notorious (with Florida and Vermont) for having in the 1990s passed retroactive liability-expanding bills to strengthen the hand of state AGs suing the tobacco industry.

There is, however, good news to report: the Judiciary Committee of the Maryland House of Delegates has voted thumbs down on H.B. 1392, a bill that would establish backward-looking "market-share liability" so as to make it easier to extract dollars from FDR-era paint makers. Still pending is a companion bill, H.B. 1441 HB 1447, that would open up "public nuisance" theories of the sort that recently proved successful at trial in Rhode Island. Jane Genova has details on both bills (and also some kind words for my work, for which thanks)(& thanks to David Thomasson for correcting the bill number).

The Tobacco Wars - PointOfLaw Forum

After RJR and Lorillard set aside $756 million in disputed tobacco settlement claims on Monday (as Michael Krauss noted yesterday), the long negotiations between the industry and state attorneys general to resolve the payment issue 'fizzled', according to Nancy Zuckerbrod of the Associated Press. Connecticut attorney general Richard Blumenthal is not happy: "We're continuing to review our options, but certainly a lawsuit looks likely this week." It looks like another round of tobbaco lawsuits are headed our way (I wonder if Blumenthal et al. will farm out their work to private firms, as the Rhode Island AG did in the lead paint suit), even without Philip Morris's participation in witholding.

Lawyer Lead-ership - PointOfLaw Forum

Early this morning, Walter pointed readers to Philip K. Howard's article "Making Civil Justice Sane" in the new edition of the Manhattan Institute's City Journal. Readers may also be interested in my brief Soundings column in this issue, "Lawyer Lead-ership," which covers the recent Rhode Island decision against the paint companies alleged to have caused a "public nuisance." More information about the lead paint cases is available here at Point of Law and at Overlawyered.

Lead Paint Fights Back - PointOfLaw Forum

The much-beleaguered lead paint industry is fighting back. According to the AP�s Eric Tucker, industry attorney John Tarantino went to court on Monday to prevent Rhode Island�where in a now-notorious decision the industry was found liable for creating a public nuisance�from paying a large contingency fee to two private firms the AG�s office hired to conduct the lawsuit. Tarantino argues that it�s unconstitutional for lawyers representing a government to have a financial interest in the outcome of the case. Fidelma Fitzpatrick, of Motley Rice, one of the firms contracted, predictably disagrees.

  1 2 3 4 5