Results matching “lead paint”

Ohio lawsuit curbs OKd - PointOfLaw Forum

Despite peals of outrage from opponents, Ohio's legislature has passed two significant lawsuit reform measures in the waning days of its session. One would prohibit the use of municipal public-nuisance theories against former makers of lead paint, as pursued in lawsuits under the tutelage of Motley Rice; the bill would not restrict more conventional (and less promising) product-liability theories. Acting in what it said was response, the city of Columbus has filed its own suit against lead paint companies, joining Toledo, East Cleveland and Lancaster (h/t Genova). (P.S. The measure is not retroactive, so lawsuits already filed on the bill's effective date would not be dismissed.) The second bill would limit, to $5,000, the damages for non-economic damages consumers could receive under the state's unfair-practices statute; the availability of economic damages would be unaffected. The Ohio Supreme Court recently alarmed business defendants by ruling that non-economic damages were available under the act. Incumbent Republican Gov. Taft is considering whether to sign the legislation; lawmakers acknowledged that his successor, incoming Democrat Ted Strickland, would be less likely to view the measures favorably.

Update: Cincinnati and Canton have now filed suits as well.

Ohio lead-paint suits, cont'd - PointOfLaw Forum

The legislature in Columbus is wrangling over a proposal to cut off municipal suits by statutory means (h/t Genova). And the New York Law Journal profiles the litigation's real driving force, which of course is not any of the nominal governmental plaintiffs but the law firm of Motley Rice.

Akron withdraws lead paint lawsuit - PointOfLaw Forum

The city of Akron, apparently having had second thoughts about signing up for Motley Rice's big money quest, has withdrawn its lawsuit seeking damages from former manufacturers of lead paints, though it says it hasn't ruled out refiling. MedPundit Sydney Smith, who's from the Akron area herself, discusses, as does Boring Made Dull ("Surprisingly, Akron Decides That it's a Bad Idea to Bankrupt a Major Local Employer" -- also see this earlier post.) And Jane Genova has been on the story here, here, here, here, here, and here. An editorial in the Akron Beacon Journal commended the city administration for taking "the responsible course" in reconsidering the suit.

Panic! Chemicals frying kids' brains! - PointOfLaw Forum

Industrial pollution, which is on the decline in this country, is triggering autism and learning disability in kids, diagnoses of which are on the increase. That's the message recently spread about by seeming authorities such as The Lancet and the Harvard School of Public Health, and picked up by innumerable press accounts. To which the appropriate response is: Question Authority. Cliff Hutchinson of Science Evidence explains. At what point do we just stop treating The Lancet as a reputable scientific journal? More: Jane Genova reminds us of Lancet co-author Philip Landrigan's prominent role as an expert witness in lead paint litigation.

Turning lead into gold - PointOfLaw Forum

The Institute for Legal Reform has put on its website the definitive summary of lead paint litigation and the problems of public-nuisance law expansion, written by Texas attorneys Richard Faulk and John Gray.

Wisconsin governor's race - PointOfLaw Featured Discussion

Incumbent Democratic Gov. Jim Doyle had been running comfortably ahead of his Republican challenger, U.S. Rep. Mark Green, but the latest poll suggests a tightening race, with Green only six points behind. Liability issues have been an important factor in the race since Gov. Doyle vetoed four civil justice reform bills last January, including curbs on lead-paint and gun lawsuits, a product-liability bill, and a measure that would have moved Wisconsin's lenient expert-evidence standards toward a Daubert standard. Not long before that, Gov. Doyle vetoed a measure that would have limited medical malpractice recoveries, although he later signed a less restrictive measure.

Comments from reader Thomas Zak - PointOfLaw Featured Discussion

Here are some comments from reader Thomas Zak in Indiana:

I wanted to respond briefly to some of your comments in today's featured discussion. The numbers match up with your initial points.

1) I agree that litigation reform is a dead issue in this election, but I disagree that it was ever a serious issue to begin with. The med-mal caps suggested before were no more than a Band-Aid on a gunshot wound. No major party has ever come out strongly in favor of returning sanity to our system through either a restoration of the basic principle of �assumption of risk� or the more radical idea of loser-pays.

3) Eliot Spitzer has been able to pull off his activist AG stint by having the luck of NYC and Wall Street within his jurisdiction. By having an trillion dollar industry well known for financial shenanigans under his purview, he has been able to find real scandals which can be exposed (and exploited).

The other AGs are left with the crumbs. In many cases they have latched onto questionable �scandals� like the paint industry lead fiasco in order to create a scandal out of whole cloth.

5) Given that Democratic control of congress is a possibility and that many Republicans are also opposed to common sense reforms, we must understand that national legal reform is dead � until the next major scandal of a multi-billion dollar verdict against an innocent corporation. If the public ever realizes how these all too common cases affect their pocketbooks through lost jobs and higher prices, then litigation reform will have a chance.

The problem is that the connection is too weak for the public to see since most cannot even balance their checkbooks and are gullible enough to believe that speeding drunks that roll their trucks should be given millions in compensation for �design flaws� in traction control systems.

So the national debate is lost for now. The real question is what can be done at the state level. What comprehensive plan can be put in place to convince ANY state government to bring justice back to their justice system instead of just waiting for the next scandal and then tweaking the rules slightly?


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.

Sherwin-Williams strikes back - PointOfLaw Forum

The large paint company isn't just sitting around providing target practice for Motley Rice & Co. and the local-government entities it enlists as plaintiffs in its suits; it's filing pre-emptive litigation against a group of Ohio municipalities who've filed lead-paint actions, and even one that hasn't but is thinking about it. Jonathan Adler leads a discussion, Camera Lucida applauds the action, and Jane Genova provides extensive coverage and links here, here, here and here.

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.

NJ courts' Mass Tort Information Center - PointOfLaw Forum

Resource for researchers: the New Jersey court system maintains a highly organized website it calls the Mass Tort Information Center with copious information about various product liability and other mass tort cases currently or recently the subject of much litigation in the Garden State. Categories active as of this writing: Accutane, Asbestos, Bextra/Celebrex, Ciba-Geigy water pollution claims, Diet Drug (fen-phen, Redux), Hormone Replacement Therapy, Long Branch Manufactured Gas Plant pollution claims, Lead Paint, PPA (phenylpropanolamine), Tobacco, and Vioxx.

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.

Cali Lead Paint - PointOfLaw Forum

According to Mike McKee, in the Recorder, eight makers of lead paint may find themselves stuck with a cleanup bill in the billions:

The California Supreme Court on Wednesday refused to review a ruling that OK'd a suit seeking to force manufacturers, such as Atlantic Richfield Co. and Sherwin-Williams Co., to cover the costs of abating lead paint inside and outside all types of structures.

This litigation has been hard-fought for years: 12 Bay Area counties and eight paint manufacturers have wrestled over it. It looks like one more victory for the trial bar at this point. Anyone interested in this subject should read PoL's own Jim Copland's excellent article on the subject in the Spring 2006 City Journal.


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.

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.

Blawg Review #56: Sex, Virtual Weddings, and Baseball - PointOfLaw Forum

It's been a busy week in the legal blogosphere. We're a committed group blog here at Point of Law, so we teamed up to cover the many topics summarized below. A big thanks to Larry Ribstein, Tom Kirkendall, Ted Frank, Sam Munson, and our editor Walter Olson for all their hard work.

I've sorted through everyone's contributions and tried to organize them as logically as I can, by topic. We start with the week's headline--Sex!--and proceed through Legal Academia, Legal Practice and Employment, Television and Cyberspace, Intellectual Property and First Amendment, Litigation, Corporate Governance, "Holidays and Anniversaries", and "Baseball, Death, and Taxes". If some of those are less than self-evident, keep reading. We hope you enjoy!

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.

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