July 1, 2008

RI Supreme Court Overturns Lead-Paint Verdict

Carroll Andrew Morse

From Brandie Jefferson of the Projo's 7-to-7 blog...

The Rhode Island Supreme Court today reversed a lower court’s judgments in favor of the state in its suit against companies that manufactured and sold lead paint in Rhode Island.

The court reversed the Superior Court’s decision calling for Millennium Holdings, NL Industries and Sherwin-Williams to participate in an abatement program to clean houses that may have cost the companies upwards of $2.4 billion.

The complete opinion is available online. Here is the court's decision on the central issue, that the case against Millennium Holdings, NL Industries and Sherwin-Williams should have been dismissed...
For the reasons set forth herein, we reverse the judgment of the Superior Court as to the liability of defendants, Millennium, NL, and Sherwin-Williams, because we conclude that the trial justice erred by denying defendants’ motion to dismiss. More specifically, we conclude that the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children.

In reaching this conclusion, we do not mean to minimize the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning. Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law. As set forth more thoroughly herein, defendants were not in control of any lead pigment at the time the lead caused harm to children in Rhode Island, making defendants unable to abate the alleged nuisance, the standard remedy in a public nuisance action. Furthermore, the General Assembly has recognized defendants’ lack of control and inability to abate the alleged nuisance because it has placed the burden on landlords and property owners to make their properties leadsafe.

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I bet DuPont is regretting that bribe they gave Patrick right about now...

Posted by: Greg at July 1, 2008 9:57 AM

"... public nuisance law simply does not provide a remedy for this harm. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law."

Bravo, Honorable Justices!

We all share the Court's grave concern for children harmed by lead paint. But unlike cigarette makers who continued to sell their product while lying about the harm it was doing, paint companies stopped selling leaded paint as soon as the harm was known.

The prior and current Attorneys General, therefore, had to really reach for a law whereby they could prosecute the paint companies. And it proved too much of a reach in the end.

Posted by: Monique at July 1, 2008 1:24 PM

Monique -

The blantant inaccuracy of your post is breathtaking. The evidence introduced at trial showed that the lead paint companies knew in the 1st decade of the 20th century (1900-1910) that lead paint was poisonous. They didn't stop selling it in the United States until 1978 (by Congressional statute). There is 70 YEARS IN BETWEEN. I would urge you to go online and do some research on the history of lead paint. You could start here:

Posted by: Matt Jerzyk at July 1, 2008 2:21 PM

Matt, I don't know how to break this to you, but your cite is to Judge Silverstein's Superior Court decision. Umm.. that's what the RISC overruled. They obviously didn't buy the "lethal product since the 1920's" evidence.

Posted by: observer at July 1, 2008 6:49 PM

Matt's just mad because he's already spent that sweet bonus he was banking on getting from Motley Rice.

Posted by: Greg at July 1, 2008 6:55 PM

Motley Rice: class action ambulance chasers!

Posted by: Ragin' Rhode Islander at July 1, 2008 10:00 PM

Hey AR friends,

Silverstein's decision quotes the evidence that was offered into the record showing when the lead paint companies actually "knew" that their product was dangerous. You would have known that if you had actually read it.

And by the way, you are kind of wrong in your assertion that this decision was overruled since the Supreme Court of RI overruled the Superior Court on a 12(b)(6) motion and NOT on any balancing of the evidence in the case.

Posted by: Matt Jerzyk at July 2, 2008 12:53 PM

Regardless, this frivolous suit was dropped and Matt doesn't get paid.

Posted by: Greg at July 2, 2008 1:00 PM

Matt, here is the discussion on page 7 of the RISC decision reversing Judge Silverstein;

"Most lead pigment manufacturers belonged to the LIA as early as 1928, but the length of each company’s membership varied considerably. Sherwin-Williams discontinued its membership in 1947, whereas Millennium remained a member until 1960, and NL remained a member until 1982. At trial, the state offered the minutes of a December 12, 1930, LIA board of directors meeting, containing a section titled “Lead Poisoning.” The minutes refer to a discussion of recent news articles concerning the dangers of lead-based paint, including an article in the November 20, 1930, edition of The United States Daily, which reported: “Lead poisoning as a result of chewing paint from toys, cradles and woodwork is now regarded as a more frequent occurrence among children than formerly.” Lead-free paint on furniture and toys to protect children, The United States Daily, Nov. 20, 1930. The minutes implied doubt about the extent of the problem, but demonstrated emerging knowledge of the problem within the industry."

If you want to read that as a ringing endorsement of Judge Silverstein's findings regarding the historical record of the paint companies' knowledge of the dangers of lead paint, go right ahead.

Posted by: observer at July 2, 2008 7:02 PM


If the evidence is as compelling as you claim it is, then the state shouldn't have had any problem making its case under product liability or negligent misrepresentation laws. But it couldn't (Judge Silverstein rejected both of these claims back in 2001), so the state's lawyers tried end-running the standards established in product liability/negligent misrepresentation with the "public nuisance" argument.

A-reach-too-far, without the necessary facts to back it up, sounds like a pretty accurate characterization to me -- and more importantly -- to the Rhode Island Supreme Court.

Posted by: Andrew at July 3, 2008 9:49 AM
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