Results matching “lead 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.

NAM amicus brief in Calif. public-contingency case - PointOfLaw Forum

As readers know, the California courts are considering an issue of high importance: whether government entities can hire private counsel on contingency fee to pursue public nuisance cases, which these days include ambitious ventures in regulation through litigation such as public-entity lead paint suits. A trial judge agreed that a precedent known as Clancy bars allowing private lawyers to prosecute such cases in exchange for a share of the proceeds, an appeals court disagreed, and the issue now heads to the state's high court. Now the National Association of Manufacturers (which which co-blogger Carter Wood is associated) in conjunction with several other business groups (the American Chemistry Council, the Coalition for Public Nuisance Fairness, and the Association of California Insurance Companies) has prepared an amicus letter, which can be read at this link.

The brief points out that the exception the court carved out of Clancy, authorizing suits in which the government entity supposedly retains control over the course of the litigation, will be "virtually impossible" to enforce, at least absent extensive and ongoing court supervision of the internal workings of the public-entity litigation teams; indeed, the lawyers on those teams will have both motive and opportunity to simulate fictional city or county control of actions that are in fact steered and managed by the contingency-seeking outside counsel. Earlier here and here, etc.

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]

New at Overlawyered - PointOfLaw Forum

If you're not reading Ted's and my other blog, you're missing commentary on a terrific new Stuart Taylor Jr. column on the South Africa corporate reparations suit, global warming, lead paint, etc; my own roundup on the Kivalina Eskimo climate-change suit, also discussed by Taylor, and spearheaded by class-actioneers Steve Berman and Steve Susman; the piquantly named Kentucky Fund for Healthy Living, funded from the fen-phen settlement (and more); Congress votes to authorize antitrust suits against OPEC; metal baseball bat maker sued; D.C. Circuit panel rules paper money discriminates against blind; new round in Seidel subpoena controversy; why California's Prop 99 isn't effective eminent domain reform; and much more. And that's aside from a complete new design and navigation.

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.

The Costs of Lead Paint Hype - PointOfLaw Forum

From WIBV-TV, Buffalo:

BUFFALO, N.Y. (WIVB) - - The North Park Branch Library located at 2351 Delaware Ave., will be closed temporarily as of Friday, April 25, 2008.

During a recent construction assessment to repair plaster walls, lead paint readings came back elevated. The highest elevated levels reported are confined to window areas of the library that are enclosed in plastic for energy savings.

As a precaution and to ensure the safety of staff and patrons, in consultation with the Library's Board of Trustees, B&ECPL Director Bridget Quinn-Carey has decided to temporarily close the library. "While we do not believe that our staff or patrons are at risk for lead exposure, we have decided to err on the side of caution and temporarily close the facility until further assessments and remediation work can be done," Quinn-Carey said.

"The highest elevated levels reported are confined to window areas of the library that are enclosed in plastic for energy savings." And the risk is, what, that children will claw throught the plastic, repeatedly, to eat ALL the paint from windowsills, over the course of years?

You have to wonder how often this sort of expensive overreaction is going on. Any dispassionate risk analysis has been buried by litigation, media hype and government-expanding politicians.

(More at

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.

Reviver statutes and church-abuse suits - PointOfLaw Forum

Ted has an important article in National Review Online today on the ill-considered campaign to revive old claims against the Roman Catholic Church and other defendants. The idea of reopening lapsed statutes of limitation has also been pursued extensively in the context of asbestos, lead paint and other product liability, as Ted notes at greater length in his recent AEI Liability Outlook piece.

Wisconsin: voters halt court's leftward drift - PointOfLaw Forum

In a race that drew heavy nationwide attention and charges on both sides of underhanded campaigning, conservative challenger Michael Gableman narrowly upset incumbent Wisconsin Supreme Court justice Louis Butler. In the now-familiar pattern of state high court battles, Gableman had been backed by business groups, Butler by trial lawyers and unions. The result may be to tip the balance on the court away from the steady expansion of liability that has characterized its recent decisions in areas like lead paint and medical malpractice. (Wisconsin State Journal, Badger Blogger, Freedom Eden, Milwaukee Journal Sentinel). Earlier here.

More: NAM "Shop Floor" multiple posts here, here, and here; Dan Pero; Althouse.

Wisconsin high court vote today - PointOfLaw Forum

Voters in Wisconsin go to the polls today in a race that might (or might not) serve as a referendum on the Wisconsin Supreme Court's recent pro-plantiff lurch. Justice Louis Butler, closely identified with that lurch and in particular with the court's opening of lead paint liability, is facing a challenge from Judge Michael Gableman, who's strongly backed by business groups. Earlier here. Separately, an appeals court race on today's ballot may be causing friction between Gov. Jim Doyle and the state's organized plaintiff's bar, up to now close allies. More: The WSJ had an editorial last week on the high court race. Update: Gableman wins narrowly, tipping court's probable balance.

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"]

Retroactive lead-paint liability - PointOfLaw Forum

A bad idea we posted about in 2006 still hasn't gone away: some Maryland legislators would like to impose liability on paint makers by statute after the fact, provoking a critical editorial in the Baltimore Examiner.

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.

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