Okay, we all know that it will be a long time if ever before the Rhode Island lead paint defendants have to comply with Judge Michael Silverstein's ruling to select a Special Master for determining abatement terms and conditions. The defendants' case will be traveling to the RI Supreme Court and then, legal experts claim, there are grounds to advance, if need be, to a federal jurisdiction.
But, suppose the defendants wind up back at Square One, that is, selecting a Special Master for abatement. According to legal experts I've consulted the whole enchilada could implode right there. The state's case could be exposed as lacking merit.
Here are the opinions of two legal experts:
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Brandname Attorney in Washington D.C., off-the-record:
You might say that in this whole RI lead paint litigation saga the rubber meets the road in any attempt [think appointment of Special Master] to fashion a remedy. That will necessarily put the state's case in an automatic conundrum, as it cannot merely put together a fund unlinked to the tens of thousands of dwellings which purportedly are an "indivisible part" of the cumulative problem without being extra judicial and arbitrary on its face.
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Legal Expert who is not practicing law, off-the-record:
The analysis of what has been referred to as the "abatement conundrum" is one I have been considering for a while.
In order to actually receive any money for abatement, the state will have to conduct more specific discovery on the actual number of lead-unsafe properties and the degree to which they present a health hazard. That will be something which the state fought earlier against because the defendants wanted to have that evidence for trial.
All of a sudden, the state will need to argue in favor of that sort of discovery, or try some sort of magic act to get a Special Master to present an abatement plan which includes dollar figures without specifying the extent of the hazard. So far, the state has done all it can to avoid specificity on the actual children or properties hurt by lead in the state. This is why the defendants are crying foul over causation and public nuisance.
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Further reader comments welcome, on- or off-the-record. Please contact me at mgenova981@aol.com.
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