R.I. High Court Asked To Review Lead Paint Issue

WASHINGTON--Industry groups have filed a brief urging the Rhode Island Supreme Court to overturn a lower court ruling allowing lead paint manufacturers to be sued for damages based on state public nuisance laws.

The friend of court brief was submitted by several insurance industry trade groups and other business interests in support of lead paint manufacturers who are defendants in the case.

It argues that in demanding damages against three lead paint manufacturers, "the trial court misstated all of the fundamental elements of public nuisance law and created a near-defenseless lawsuit."

The brief was written by Phil S. Goldberg of Shook, Hardy & Bacon law firm and submitted by the Coalition for Litigation Justice Inc. Members of the coalition include the American Insurance Association and the National Association of Mutual Insurance Companies.

The case titled State of Rhode Island vs. Lead Industries Association Inc., et al. was brought by state officials against the makers of lead-based paint.

In a jury finding last year, three manufacturers were ordered to clean more than 300,000 homes of lead contamination and may potentially be forced to pay out billions of dollars in damages.

The brief says that if the Rhode Island Supreme Court affirms the trial court's rulings, it would "separate out Rhode Island from the other states" by allowing the state attorney general "to misuse the authority of the state in private litigation."

The brief argues further that, "Any business that ever lawfully made or sold a product could be held liable in Rhode Island at the whim of the attorney general if the product category as a whole were misused or not properly maintained by members of the public."

The brief maintains that if the verdict is sustained, it would give the state government "near limitless ability to impose liability on an industry if its products could at some point contribute to an inherent risk to enough people."

The brief argues that the "usefulness of the product, the lack of any wrongdoing by the defendants, and the passage of time after the product ceased to be sold would all be irrelevant."

According to the brief, the arguments cited are reasons that other states, such as New Jersey, Illinois and Missouri, have rejected similar expansions to public nuisance law.

Last June in New Jersey the paint manufacturers and their insurers obtained a ruling from the state's Supreme Court tossing out a lawsuit brought by 26 New Jersey towns and counties against lead paint manufacturers who sued to recover the cost of removing the hazardous product.

The New Jersey decision found that the action could not be brought under public nuisance law and was actually a product liability case.

Mr. Goldberg said the New Jersey Supreme Court decision was consistent with an earlier reading of the law by the Missouri Supreme Court.

The Missouri tribunal upheld a lower court's finding that the City of St. Louis could not proceed with a lawsuit against makers of lead paint seeking the cost of removing the product from homes.

And in November, a Milwaukee County Circuit Court jury ruled against a 17-year-old youth who alleged his mental retardation was caused by lead paint products.

Earlier, last June, the city of Milwaukee lost another case, also brought under public nuisance statutes.