On July 1, the Rhode Island Supreme Court threw out the only jury verdict against lead paint manufacturers based on use of public nuisance laws by a 4-0 decision.
In its decision, the Court said, “Justice is based on the relationship among people, but it must be based upon the rule of law. This Court is powerless to fashion independently a cause of action that would achieve the justice that these children deserve.”
Phil Goldberg, a lawyer at Shook, Hardy & Bacon in Washington, D.C., assessed the ruling, saying “The Rhode Island Supreme Court put an important nail in the coffin of recent efforts to expand public nuisance theory into a super tort that can overcome all previous known bounds of civil liability. The rule of law won out.”
Equally important, said Mr. Goldberg, who has followed the case for the insurance industry since 2000 (the year after the case was first filed), the Rhode Island court held “that it would be inappropriate to use this tort in suing product manufacturers in an effort to get around product liability laws.”
The court decision threw out a jury verdict in 2006 against Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC. The verdict held them liable for creating a public nuisance by manufacturing and selling a toxic product.
To satisfy the verdict, the state had proposed that the companies spend an estimated $2.4 billion to inspect and clean hundreds of thousands of homes built before 1980 that it said were likely to contain lead paint.
Rhode Island was the first state to sue over the harms of lead paint, which studies have shown can cause brain damage, coma and even death in children exposed to flaking paint chips or dust. The state’s lawsuit targeted former makers of lead pigment, which had long been used in paint to make it more durable.
The first trial ended in 2002 with a hung jury.
The case went to trial again in the fall of 2005. The jury ruled against three manufacturers and absolved a fourth, Atlantic Richfield Co. It was the only court case the lead paint industry has lost.
Several suits are still pending, including suits in Ohio and California. The top courts in New Jersey and Missouri last year rejected public nuisance lawsuits against the companies, while a jury in Milwaukee in November ruled in favor of NL Industries in a suit brought by the city.
In Ohio, Mr. Goldberg said a decision of the Ohio Supreme Court upholding a new law barring these suits effectively ended the Ohio cases.
In California, an Appeals Court in April upheld the right of large cities to use private outside counsel working on a contingency basis to pursue cases that have been pending since 2000.
If it stands, the appeals court ruling would have a broad impact because communities suing the paint makers include Los Angeles, San Francisco, Oakland, San Diego, Santa Clara, San Mateo, Monterey, Solano and Alameda.
But Mr. Goldberg questioned the ability of the California communities to ultimately win their cases. “As the Rhode Island Supreme Court recognized in oral arguments, many people were waiting for this decision,” he said. “Any Attorney General or court looking at speculative public nuisance claims should read this case because it provides important and necessary context as to how public nuisance laws should be applied.”
Specifically, Mr. Goldberg cited language in the Rhode Island decision 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,” the court said. “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 court said.
“The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law,” the court said.
Noting comments in the decision that cited Mr. Goldberg’s friend of the court brief in the case, he said four elements needed to yield a verdict against manufacturers based on public nuisance laws were not met. For example, “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 decision said, “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 lead safe.”