RI Lead-Paint Players Respond to Sherwin-Williams' Federal Suit

In this new-media era, no surprise: The ongoing response to the Sherwin-Williams' federal lawsuit in Columbus, Ohio (OH) is rapidly morphing into its whole own story.  My blog post earlier this week on how trade pubs, Wall Street and sundry lawyers were assessing Sherwin-Williams' pre-emptive strike got heavy pick-up, including by a financial bulletin board.  The latest and most interesting deconstruction of the paint company's move comes from the key players in the Rhode Island (RI) lead paint saga. That includes the journalist in the loop since the late 1990s and the private law firm attorney hired on a contingency basis to assist the state of RI with its public-nuisance litigation.

Today in RI's major newspaper THE PROVIDENCE JOURNAL, Peter Lord, an environmental reporter who's been covering the RI public-nuisance lawsuit since RI lead paint I, provides a snapshot of reaction on the RI scene. What's happening in RI is so important, both legally and in terms of public opinion, because many other states as well as cities view it as a sort of canary in the mine. 

If the state of RI and the private law firm it is using on contingency basis - Motley Rice - can pull off collecting a hefty (think up to $3.74 billion) abatement fee, the door is open to other states and cities to also pursue the apparent deep pockets of the corporations which were associated at one time with lead paint. 

Of course, along the way to the court house, these corporations could go bankrupt and one of the most important/innovative industries in America could be hobbled (millions of jobs gone), but financially strapped states and cities seem to be thinking in terms of a short-term way to plug financial holes.  Those holes could get bigger if HUD, as it did in Burlington, Vermont (VT) which has a model lead-abatement program, shuts down a continuation of funding.  That's a possibility if the Republicans dominate D.C.  It's less likely if the Democrats increase their power in November and, more importantly, in 2008.  If Andrew Cuomo wins the New York Attorney General election, he could have a positive influence on HUD funding for environmental, which includes lead paint, issues.  Cuomo's campaign people released a white paper in July on his environmental track record.

Lord snagged an interview with Motley Rice player Jack McConnell.  Now, keep in mind Motley Rice seemed to have acquired its national brandname and considerable financial resources during the the peak of the tobacco litigation.  So, it's not unusual for Motley Rice to hearken back to that experience for analogies and it's equally common for critics of the lead-paint litigation to argue that those analogies are not valid.  The critics contend lead paint is very different from tobacco - for example, it's a necessary product and is no longer being produced or sold.

Well, according to Lord, McConnell observes that Sherwin-Williams is using the same kind of pre-emptive strike that the tobacco companies tried to use.  McConnell states, as reported by Lord, that the tobacco companies sued the attorney general of Massachusetts even before he [the attorney general] sued them. The tactic was intended, Lord quotes McConnell as saying, to "intimidate public officials before they file.  There is no legal basis.  They are just disparaging us [Motley Rice]."

McConnell also opines that this OH suit is the strategic work of Pittsburgh-based law firm Jones Day.  That firm has been representing Sherwin-Williams in the RI lead paint trials.  Since I have great respect for the legal minds at Jones Day, especially that of lead attorney Paul Michael Pohl, I had suspected that this brilliant decision to go on the offense was born in Pittsburgh.  When I interviewed the jurors after the RI lead paint trial, they were in agreement in their praise for the high quality of the defense teams, ranging from ARCO's lead attorney John Tarantino to Sherwin-Williams' Pohl.  In fact, the jury foreman commented that the state was "outlawyered." Irony: McConnell doesn't seem to understand public relations. His attempted criticism of Jones Day could bring in plenty of new corporate business for the law firm.

Lord also seeks a comment from the Sherwin-Williams' side.  He interviews its spokesperson Bob Wells.  In a sort of new-media way, Wells says that the company wants to start a conversation with the city fathers in OH, rather than jump into the litigation route.  Lord quotes Wells as saying that "litigation is a tremendous distraction to good public policy."

No need to mention, of course, that Lord reiterates how we're all waiting for Judge Michael Silverstein's decision on the defense's motions for a dismissal or new trial.  On August 30-31, there were hearings in front of Judge Silverstein about those motions.  Although McConnell was present he did not present the plaintiff's point of view.  Motley Rice attorney Fidelma Fitzpatrick carried the ball on that.  I was curious why McConnell hadn't played a role in that hearing.  Perhaps Motley Rice wanted to give Fitzpatrick more exposure.  Her trial-attorney skills are growing.  She was impressive at the hearing.