Results matching “lead paint”

Maryland's legislature adjourned last night, having generally passed on civil justice-related legislation during the session. The Maryland Chamber of Commerce summarizes:

Civil Liability: The 22 civil liability bills that the Chamber took positions on were put down in order. While we had favored a few short-lived tort reform bills, veteran proposals on false health claims, market share liability for lead paint and increased economic damages for wrongful death were all left stranded.

Especially welcome is the defeat of HB 1156, a market share liability bill limited to Baltimore: "Requiring specified manufacturers of lead pigment to reimburse specified persons for damages caused by lead-based paint in residential buildings in Baltimore City; establishing the types of damages caused by the presence of lead-based paint in residential buildings in Baltimore City for which manufacturers of lead pigment are liable to specified persons; creating the Lead Paint Restitution Fund; etc." More from the Chamber on the bill.

Around the web, April 3 - PointOfLaw Forum

  • Jury awards $1.3 million to financial advisor after Wachovia wouldn't take him back after military service [Hartford Courant, Daniel Schwartz]
  • Texas Senate considers asbestos reform rollback [Overlawyered]
  • Paint companies await decision on Rhode Island lawsuit cost reimbursement [AP/Boston Globe via Genova]
  • "Plaintiffs firms still hiring for securities class actions" [The Recorder]
  • More high-profile exposure for Philip Howard's proposal to establish nonjury medical liability courts [NYT, WSJ law blog]
  • Church abuse suit: I'm suing you again because I shouldn't have settled with you the first time [Seattle Times]

Toward the bottom of an AP story about the next phase of the Rhode Island lead-paint litigation -- "RI, paint cos. await decision on lawsuit costs" -- is this little nugget:

The situation is so dire that Gov. Don Carcieri in January proposed delaying payment of a $10 million legal settlement to survivors and victims' relatives of a 2003 nightclub fire, before deciding this month that it should be covered by federal stimulus funds.

Can that be right? Federal taxpayers will wind up paying part of the settlement resulting from the terrible fire that claimed the lives of 100 people attending a Great White show in West Warwick?

Apparently so.

State Budget Officer Rosemary Booth Gallogly said that while the states must use the majority of the federal stimulus money for education, the balance can be used by governors for fiscal relief. Carcieri projected a $357-million budget deficit in this year's budget before Congress approved the stimulus plan on Feb. 17.

Walter has covered the "deep pocket" legal claims and settlement resulting from the fire at in these posts. Anheuser-Busch, a beer distributor, Clear Channel, Home Depot all ponied up. But the deepest of the deep pockets is now that of the U.S. taxpayer.

Around the web, March 20 - PointOfLaw Forum

  • Maryland gasoline leak results in award against ExxonMobil of "only" $150 million [Daily Record]
  • Also in Maryland, Peter Angelos calls off a ten-year-old suit against lead paint manufacturers [Genova]
  • Mark Herrmann (Jones Day, Drug & Device Law Blog) op-ed on Wyeth v. Levine [Chicago Tribune] Dechert client alert on the decision [D&DL] And Darshak Sanghavi takes the New England Journal of Medicine to task for imagining "personal injury attorneys can do a better job than the FDA in protecting Americans from complicated and sometimes dangerous medications on the market" [Slate via Pero]
  • Assemblyman Van Tran explains his proposal in Sacramento for class action certification reform [California Civil Justice]
  • New study finds ABA's liberal bent not just a matter of perception [Coyle, NLJ; Vining, Steigerwalt, Smelcer] And now the Association is going to be right back in the thick of the judicial selection process [CBS]
  • Symposium: "The Globalization of Class Actions" [AAPSS, Hensler, ed.]

Around the web, March 12 - PointOfLaw Forum

  • Maryland trial lawyers once again pushing Annapolis bill to open up suits against former lead paint manufacturers [Marta Mossberg, D.C. Examiner]
  • U. of Chicago emergency room under fire for sending dog-bit kid home. What's the ultimate lesson? [White Coat]
  • Expert on economics of piracy has book out next month titled The Invisible Hook [Dubner, Freakonomics]
  • "Everything from an alarming advertisement to a cockroach baked in a pie": what can't be called "public nuisance"? [Maureen Martin via Genova]
  • Prejudgment interest bill in Springfield could be a sort of stimulus bill for Illinois trial lawyers [Travis Akin, I-LAW via Pero]
  • James Zirin reviews Philip Howard's Life Without Lawyers [NY Law Journal]

Alan Ehrenhalt on regulation through litigation - PointOfLaw Forum

In an interesting review of the lead paint public nuisance cases, the veteran analyst says pressing the courts into service as surrogate regulators didn't work well there.

Around the web, February 12 - PointOfLaw Forum

  • California cities' and counties' is the only lead paint nuisance suit left standing [Calif. Civil Justice Blog]
  • Retailers in "panic" over court's last-minute reinstatement of phthalates ban [WSJ Law Blog; more CPSIA coverage]
  • Who needs skilled immigrants, anyway? Stimulus bill bars bailout beneficiaries from hiring international talent through H-1B visa program [Cowen, MargRev]
  • Home field advantage for state of Alabama and Jere Beasley against Sandoz in drug pricing lawsuit [AmLaw Daily]
  • Anti-vaccine figure Andrew Wakefield, accused of various impostures, wins Olbermann "Worst person in the world" award [Orac] But alas... [follow-up]
  • First post-Engle tobacco trial begins in Florida [Childs]

A state's public nuisance lawsuit that succeeded - PointOfLaw Forum

The decision by Ohio AG Richard Cordray to drop the state's lawsuit against paint manufacturers for lead contamination reminds us to check back on another attorney general's public nuisance suit -- the one brought by North Carolina AG Roy Cooper against the Tennessee Valley Authority for air pollution caused by the TVA's coal-fired power plants.

(Earlier post.)

Cooper appears to have won. On January 13, U.S. District Judge Lacy Thornburg of the Western District of North Carolina ruled in the state's favor and ordered specific steps the TVA must take. The TVA's latest 8K filing is quick and to the point:

On January 13, 2009, the United States District Court for the Western District of North Carolina issued its decision in the lawsuit brought by North Carolina against TVA alleging that TVA's operation of its eleven coal-fired power plants in the states of Tennessee, Alabama, and Kentucky constitute public nuisances. The court held that emissions from the Bull Run Fossil Plant ("Bull Run"), the Kingston Fossil Plant ("Kingston"), the John Sevier Fossil Plant ("John Sevier"), and the Widows Creek Fossil Plant ("Widows Creek") constitute a public nuisance. The first three plants are located in Tennessee, and Widows Creek is located in Alabama. The court declined to order any relief as to the remainder of TVA's coal-fired plants, holding that their emissions did not significantly impact North Carolina.

The judge goes on to order specific actions regarding flue gas desulfurization systems, scrubbers, and nitrous oxide emissions. Cooper issued a statement hailing the ruling's effects on "our air, our health, and our travel and tourism economy."

Rate payers will pick up the costs, obviously; already the TVA had ordered $1 billion in pollution controls for three of the plants. From AP: "The nation's largest public utility, already paying out $1 million a day to clean up a massive coal ash spill in Tennessee, said expenses could rise even more if it has to meet a federal judge's accelerated deadline for reducing smokestack pollutants blowing into North Carolina."

The Tennessean has had excellent coverage, including background materials, to which we link from the main story, "TVA must limit plants' pollution

The ash spill has certainly colored coverage and commentary on the ruling, and the New York Times reached for the grand conclusion in an editorial, "Collapse of the Clean Coal Myth."

Ohio AG dismisses state's lead paint lawsuit - PointOfLaw Forum

A news release from the office of Ohio Attorney General Richard Cordray, "CORDRAY DISMISSES LEAD PAINT LAWSUIT":

(COLUMBUS, Ohio) - After careful consideration, Ohio Attorney General Richard Cordray today voluntarily dismissed the lead paint lawsuit filed by former Attorney General Marc Dann in April 2007. This lawsuit was pending in the Franklin County Court of Common Pleas against ten paint manufacturers and was focused on abatement of lead paint throughout Ohio.

"I understand and strongly agree that exposure to lead paint is a very real problem," said Attorney General Cordray. "But I also know that not every problem can be solved by a lawsuit." After assessing the law, facts, and adverse legal rulings in these types of cases nationally, the Attorney General concluded that those at risk - and Ohio's economy - would be best served by focusing on how public/private partnerships can be enhanced to address any existing problems with lead paint exposure.

Very welcome, although a predictable political move. Given the Rhode Island Supreme Court's dismissal last year of the state's public nuisance suit against paint manufacturers, followed by the city of Columbus' dropping its suit, and other dismissals across the country, Ohio's suit was a sure loser, legally AND politically.

Besides, it was Marc Dann's idea.

UPDATE: Jane Genova at Law and More notes Cordray's decision and brings us up to date on the last of its kind litigation, Santa Clara County, now under review at the California Supreme Court.

Around the web, February 4 - PointOfLaw Forum

One of the better blog posts on the subject of the extraordinary burdens of CPSIA was Eric Husman's last month. A few excerpts:

...there are some details. You can't just not use lead or phthalates. You can't just point out that you are using undyed organic hemp and wooden toggles. No, you must prove that you are lead- and phthalate-free. How? Well, at $600-2400 per item, you ship it off to a certified testing lab. Plus, it's destructive testing, so kiss 1-12 samples of whatever it is goodbye. Also, you need to make sure that it is a representative lot, so no more repurposing of used clothes. Also, you need to provide this General Compliance Certificate (GCC) to anyone downstream who wants it. At any time. And be sure you can trace it by lot. Also, you may have to put up a bond in case they want to recall your product so that they know you can cover the cost of the recall.

Now, there's something you may not know about apparel manufacture (and you still won't know at the end of this paragraph because I'm simplifying the heck out of it). You start by developing about 20 styles and see what gets bought. Once buyers buy on the strength of the sample, you order the material and start sewing. The CPSIA testing has to be done on the final product (unit testing), not the inputs (component testing). So even though you are using the same organic cotton cloth and 5 different dyes and 3 different buttons, you can't get by with doing 8 tests (the cloth in 5 colors plus tests on each button). Nope, you have to do testing on 20 different styles x 5 different colors = 100 tests. Of which only 5 styles will ultimately go to market. That's a minimum of $60,000 just for the testing, and you haven't even started to sell yet.

By the way, size does not matter in the eyes of this law. Hanes T-shirts? Yes, they have to test. Grandpa's handmade toys that he sells on eBay? Yep, in fact eBay and Etsy are already noting that legal compliance is a requirement of their user terms of use. Also, manufacturing location does not matter - whether you make in or contract to China, Los Angeles, or Lancaster County, you have to test. ...One further thing: On February 10, if you don't have the GCC, you are selling illegally. ...

Other topics covered: the push by some advocates for phthalate testing on inventories produced before the law's effective date, the surprisingly large size of the manufacturing sector involved, and (inevitably) the leading role of "Saint Nader's" PIRG as well as the Natural Resources Defense Council.

"Incidentally," the piece concludes, "you might want to stock up on interesting children's clothing." A lot of it will be gone this time next year. (Part of CPSIA Blogging Day, more than 300 blogs participating).

P.S. Also on testing, Little Ida has a map of the rather sparse locations of available lead lab testing: many big states have no such facilities at all, which is going to make it an even bigger hassle for small producers to secure the requisite testing.

Rhode Island Superior Court Judge Michael A. Silverstein ruled Thursday that the state must reimburse three paint manufacturers who were charged for costs of developing a lead-paint mitigation plan -- specifically, the costs of "co-examiners" -- before the state Supreme Court had completed consideration (and ultimate vindication) of their appeal. (The judge's decision is here.)

From the manufacturers' news release:

"The Court got it right," said Charles H. Moellenberg, Jr., an attorney for The Sherwin-Williams Company. "These companies should not bear the costs of litigation that the Supreme Court said should have been dismissed at the outset ten years ago. This case demonstrates that state and local governments solicited by trial lawyers to file public nuisance lawsuits should recognize that these cases are not cost-free."

In July 2008, in a long-awaited ruling, the Rhode Island Supreme Court rejected the Attorney General's public nuisance lawsuit filed nine years earlier against former manufacturers of lead pigment used in residential paint, saying the case should have been dismissed at the beginning. After the jury verdict, the state filed a motion seeking costs of more than $1 million. Following the Supreme Court decision reversing the jury verdict, defendants Sherwin-Williams, NL Industries, Inc., and Millennium Holdings LLC, filed a motion seeking reimbursement of $242,121.21 in costs they paid to court-appointed co-examiners whose work began before the Supreme Court reversal.

In its ruling today, the Superior Court said: "With regard to the actions taken by both parties here, as a matter of law and fairness, the Court finds little merit in the State's suggestion that the Defendants should bear the burden of paying the Co-Examiner expenses." The decision added: "The State made a calculated decision to pursue a claim against the Defendants and voluntarily participate in the judicial system, and thus may not invoke sovereign immunity to shield it from the imposition of costs."

Precisely! The companies have more claims for compensation to come. 

And, Ohio Attorney General Richard Cordray, any reason to keep Ohio's public nuisance suit going? Distance yourself from Marc Dann!


Illinois AG Lisa Madigan in the news - PointOfLaw Forum

With the Obama Senate seat vacant and the governorship of Illinois quite possibly soon to become vacant given the arrest and disgrace of incumbent Rod Blagojevich, Illinois Attorney General Lisa Madigan's name now regularly comes up as a prospect for higher office. Madigan has, as expected, been active in office in going after business defendants, and her much-publicized lawsuit against Countrywide this summer over its mortgage lending practices drew criticism from the late Tanta of Calculated Risk (see also Felix Salmon). On the other hand, she got some surprisingly favorable publicity in October from the Madison County Record:

Fears that Madigan would be a trial-happy opponent of tort reform groups have so far proven unfounded, said Ed Murnane, president of the Illinois Civil Justice League.

"She's been a pleasant surprise to those of us who were concerned that she would be very closely aligned and sympathetic to plaintiffs' lawyers," said Murnane, who serves on the board of directors of the American Tort Reform Association.

One other favorable data point here (stayed out of dubious lead paint nuisance amicus joined by 16 AGs).

Finally catching up to the latest issue of "Trial," the American Association for Justice's monthly magazine, I see that AAJ has formed three new litigation groups -- panels meant to educate, inform and polish their members' ability to sue, sue, sue. These litigation groups are most often associated with a product or practice that you can sue over, e.g., electric blankets, lead paint, toxic mold or funeral services. But one detects a different emphasis in the three new groups: jury bias, appellate practice, and class actions. The one for jury bias stands out:

Jury bias: Too often, plaintiffs lose cases they should win because of jury bias, not because of the strength of the evidence. This new litigation group, cochaired by the creators of the Jury Bias Model, will educate members about how jury bias in tort cases affects jury verdict preferences.

The group will highlight cutting-edge research so attorneys can minimize the effects of jury bias and tort "reform" rhetoric at trial, and it will provide members with information and advice about focus groups, mock juries, and jury consultants. The group will also establish a document library, a list server, and education programs to be presented at upcoming AAJ conventions.

Cochairs are David Wenner of Phoenix; Gregory Cusimano of Gadsden, Alabama; and Jerome O'Neill of Burlington, Vermont.

Pushing back against tort reform rhetoric, eh? Perhaps the trial lawyers recognize they're on the defensive, and that the civil justice reform advocates have been succeeding with their well-founded arguments.

Or maybe Wenner and Cusimano just did a real good sales job promoting their Jury Bias Model .

You can read the AAJ article on the litigation groups here.

Milwaukee lead paint recoupment lawsuit - PointOfLaw Forum

A jury wouldn't go along with the city's case, and now an appeals court won't either.

Having written this week (here, here, here, here and here) on the various public policy aspects of the tobacco master settlement agreement 10 years after its enactment, we now get to perhaps the most important and lasting consequences of the MSA: the astounding increase in money and political power the agreement brought to the nation's trial lawyers, as well as the expansion of states' use of private contingency lawyers to carry out cash-seeking litigation. Any review of the decade following the MSA that omits these profound implications for the U.S. legal and political system is incomplete, woefully incomplete.

So that's the way we'd describe NPR's series, "The Tobacco Settlement, 10 Years Later," the most prominent media take on the MSA's anniversary. Each individual story was OK within its limited scope, but the reporters and producers all but skipped the trial lawyer angle, producing woefully incomplete journalism. A non-broadcast sidebar profiled some of the actors, "Update: Key Players In The Tobacco Settlement." There's a paragraph on Mississippi's former attorney general, Mike Moore, who initiated the state lawsuit against the tobacco companies because, "His friend, attorney Mike Lewis, came to him with the idea." And there's a paragraph on Dickie Scruggs:

Mississippi trial lawyer Richard "Dickie" Scruggs first became well-known taking on the asbestos industry on behalf of sick shipyard workers. He was then hired to sue Big Tobacco, representing Mississippi in the protracted tobacco litigation in the 1990s and helping to broker a deal. He said the settlement earned his firm close to $1 billion. He continued as a class action warrior until getting into a dispute over legal fees in the settlement of Hurricane Katrina insurance cases. In 2007, he was indicted on charges of attempting to bribe a judge. He pleaded guilty and is serving five years at a federal prison in eastern Kentucky.

And that's it on the subject of trial lawyers.

Around the web, November 18 - PointOfLaw Forum

  • All-purpose public contingency fee lawyers? Already representing Bay Area's San Mateo County to go after former lead-paint makers, Cotchett Pitre has now gotten itself hired to pursue financial claims in Lehman Brothers failure [NLJ]
  • Theodore Dalrymple reviews Paul Offit's new book on autism and anti-vaccine crankery [City Journal]
  • Judge Acker issues broad ruling against Rigsby sisters, the ones who funneled State Farm Katrina documents to Scruggs informants, in Renfroe contract dispute [Memorandum Opinion PDF, YallPolitics]
  • Adopting views of Third Restatement would be step in the right direction for Pennsylvania product liability [Stephen Fogdall (Schnader Harrison) for WLF, PDF]
  • At Drum Major Institute discussion on shareholder "say on pay", sounds as if panelists march to same drum [Hodak Value]
  • On card check/labor law reform, Obama memoir is ominous: "I owe those unions. When their leaders call, I do my best to call them back right away." [EFCA Updates]

High on the list of legal-reform elections - PointOfLaw Forum

Alabama -- In the expensive, expensive, very expensive Supreme Court race, Republican Greg Shaw has defeated Democrat Deborah Bell Paseur by about a percentage point. From the AP: "The Shaw campaign claimed victory with a lead of more than 14,000 votes, while Paseur eyed a possible recount." Very much a business versus trial lawyers face-off.

West Virginia -- Incumbent Democratic Attorney General Darrell McGraw appears to have won a slim victory over Charleston attorney and former legislator Dan Greear. McGraw has contributed to West Virginia's terrible, anti-business legal climate -- see this Manhattan Institute "Trial Lawyers, Inc." update -- hiring highly compensated private lawyers to manage the state's lawsuits and then divvying up the proceeds of awards to his political allies. An expensive race featuring negative ads, but in that, hardly the exception. (More.)

Ohio -- Democratic state Treasurer Richard Cordray easily won a three-way contest for Ohio attorney general yesterday, taking 57 percent of the vote over Mike Crites, a former federal prosecutor. Cordray fills the remaining two-years of the term of Democrat Marc Dann, who had resigned in disgrace amid a sex and administrative nightmare scandal. From The Columbus Dispatch: "Cordray said his top priority will be fighting mortgage fraud. He will also work to strengthen enforcement of consumer-protection laws."

Ohio remains the only state left with a public nuisance suit against lead paint manufacturers, one filed by Dann and kept alive by the interim AG. The city of Columbus previously dropped its suit after the Rhode Island Supreme Court ruling in July. Perhaps Cordray's clear-cut victory gives him the political maneuvering room to drop the pointless, expensive and anti-economic-growth litigation. Respectfully suggested line of argument: "I intend to devote my energies to our most pressing problems, where we can do the most good."

UPDATE: We should note that in the case of West Virginia, Democratic Governor Joe Manchin was re-elected with a big margin. Manchin is a pro-growth governor who has been critical of the state's degraded legal climate, so his election offers continued hope for reform.

UPDATE, Texas: From the Wall Street Journal Law Blog, "If plaintiffs lawyers in Houston are a little groggy this morning from too much partying, please forgive them. They've got much to cheer about: Last night, Houston trial courts underwent a massive face lift, as 22 Democratic judges swept into office." Big picture: "Democrats won 22 of the 26 district-court races in Harris County (Houston). In Dallas County, which also used to be a GOP bastion before a partisan shift in 2006, Democrats won all six district-court races."

Around the web, October 17 - PointOfLaw Forum

  • Recalling lead-paint protests: ACORN "would put together a few signs, a ragtag band of people, and stand outside one of [Sherwin-Williams'] retail stores" [Law and More]
  • Speculation begins on impact of Obama or McCain win on new Supreme Court appointments [Legal Times]
  • "The patient denies other complaints": costs of defensive medicine include patient write-ups that "have become more suited to legal defense than medical communication" [WSJ]
  • Lawyers on both sides of DuPont toxic tort case contributing to West Virginia high court candidates [WV Record]
  • Greve, Sharkey, others on AEI panel to discuss key business cases of new Supreme Court term [Mon. afternoon Oct. 27]
  • MI's Jim Copland quoted in piece on VP candidate Palin's record on legal reform [Legal NewsLine]

In New Hampshire, Merrimack Superior Court Judge Philip Mangones has kept alive the state's suit against oil companies that produced the gas additive MTBE, but he has followed the Rhode Island Supreme Court in rejecting the state's public nuisance claim.

From the Concord Monitor, "State right to sue oil companies jointly":

In the state's biggest-ever environmental case, the attorney general's office is suing producers of MTBE and gasoline containing the additive, saying they should foot the bill for cleaning the thousands of wells and drinking water supplies across the state into which the chemical has seeped, in some cases making the water undrinkable.

The case names 26 defendants - companies such as Exxon Mobil, Irving, Citgo, BP and Hess - some of whom filed motions to dismiss four of the seven counts against them. Mangones denied their requests on three counts but dismissed one about public nuisance.

Citing a Rhode Island lead paint case, Mangones said public nuisance does not apply because the manufacturers were not in control of the product at the time it allegedly caused harm.

The story notes that D.C. attorney Rick Wallace, representing Shell and Chevron, is heartened by the dismissal because, "The state relied principally on this claim for its contention that it can demand payment for what it calls 'the cumulative effect' of MTBE 'statewide' without having to prove that it incurred damages from particular causes at specific sites." The other claims will require proof that a company contributed to a specific incident of contamination.

The original suit was filed in 2003 by Attorney General Peter Heed with the support of Gov. Craig Benson (both Republicans), and current AG Kelly Ayotte announced in January she would continue the suit. (Ayotte succeeded Heed after he resigned in 2004 over allegations of improper touching.)

Links and MTBE-related history below ...

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