Mealey's (tm) Litigation Report on RI Lead Paint Ruling

In an E-Mail bulletin issued by LexisNexis, a division of Reed Elsevier, the influential Mealey's (tm) Litigation Report highlighted a number of aspects of Rhode Island Superior Court Judge Michael Silverstein's ruling today in the second lead paint trial.

Here are those aspects:

• Judge Silverstein said "the underlying cause of the nuisance is the manufacturing activity" not the issue of if the defendants had or didn't have knowledge that lead is a toxic substance.
• The Judge added that a defendant's liability for a public nuisance is based "only upon the substantiality" of the defendant's actions and if those actions were proximately the cause of the nuisance.
• In addition, Judge Silverstein noted that the evidence indicated in a conclusive manner that the defendants did sell lead paint or lead pigment in RI.  He also stated that the defendants could have foreseen that the paint would eventually disintegrate and those resulting chips and dust would cause a public nuisance.
• The Judge reiterated the rightness of the jury's decision.  That decision, he noted, was based on the evidence and on common sense.

The Litigation Report also highlighted the defendants' arguments:

The defendants have contended that the state "repeatedly misled the jury." 

One example of that was the state's emphasizing the defendants' previous legislative and lobbying activities to prove liability.  This, the defendants assert, was in violation of the Noerr-Pennington Doctrine. 

Another example was the presentation of materially incorrect data [Less Database] regarding the numbers of new cases of elevated blood levels in children in RI. 

The third example concerns that segment of testimony which triggered the defendants' motion for a mistrial, which Judge Silverstein rejected.  That incident concerned the state's questioning of witness Patricia Nolan, M.D., former head of RI Health Department, about settlement discussions.

The Report adds that legal spokesperson for the defendants Bonnie Campbell, who had been Attorney General in Iowa, said, "We believe there have been a number of basic legal errors throughout these proceedings.  These errors were not corrected in today's ruling.  We plan to appeal."  That appeal will be taken to the RI Supreme Court.

For more information or a copy of the report, please contact LexisNexis Editor James Cordrey at 610-205-1125 or at james.cordrey@lexisnexis.com