Brandname Plaintiff Attorney Opines on NJ Supreme Court Ruling

The New Jersey Supreme Court ruling, along with the Missouri Supreme Court ruling - and the verdict in the current Milwaukee case if it's for the defendant - "will have a chilling effect on these kinds of lawsuits just about everywhere." 

That's what a major brandname plaintiff attorney told me today in an exclusive off-the-record interview.  The professionalism and objectivity of this source represent what I used to assume pervaded the U.S. Supreme Court.  That is, until I read the 2007 book "Supreme Conflict:  The Inside Story of the Struggle for Control of the United States Supreme Court."  Researched and written by Jan Crawford Greenburg, the book shows many of the members on the highest court of the land to be all too human. 

This brandname plaintiff is a legal giant in the ability to view issues through the lens of law and social values, rather than in a binary way of win/lose.  He has been contributing commentary to this blog since 2005.

Here are the major points this attorney has made.  Readers are welcome to respond to this commentary.

• This New Jersey ruling is more important in terms of legal impact than the MO one.  NJ courts have national standing on issues of strict liability doctrine.  Prominent jurists such as William Brennen have sat on that court.  In addition, the fundamental issue in this ruling is public nuisance.  In MO, it was proof of causation or product ID. Since the plaintiff law firm Motley Rice has been involved in the NJ case, this can be construed as a significant blow to the firm's influence going forward. Also, the decision represents the end of the road for this issue in NJ.  There is no where further to go.

• Today, defense attorneys for the paint companies will be making strategic decisions where to put their resources in the overall struggle in lead paint litigation.  Their best bet now is to focus on what's happening in Rhode Island.  That's where the big battles will need to be fought.  Also, it will be a long way to go before RI sees any money, if there is any money coming out of this litigation.

• These two wins, although razor-thin, were wins for the defense.  They might not have taken place had the tort-reform movement not been in-place.  Before the aggressive legal and public affairs efforts to address the explosion of questionable litigation these decisions probably wouldn't have occurred.  It's important to note that they represented bipartisan cooperation.

• Given that the decisions were razor-thin and that there were thoughtful dissents in both NJ and MO, the defense has to continue to be on the offense.  Moreover, these lawsuits don't happen in a vacuum.  Sure, there may be some degree of the "marketing and sale" of legal services, but demand is coming from a society which sees a wrong.  Municipalities didn't have to buy into suing the former lead paint companies.  The problem of lead poisoning among children exists.

• Although the opinion in the NJ ruling highlighted landlord responsibility, this is an expensive enforcement matter.  The odds are that government will not use it but search for another solution.  However, a solution is hard to come by.  That's why the lead paint litigation started in the first place.  The legislature wasn't doing enough.  So society turned to the courts.  Now, it sounds cynical, but probably this problem won't be really fixed until all the older housing vanishes.  Along the way will be thousands of lead-poisoned children, unfortunately.  Is an imaginative solution possible? Yes.  Will the public will push it?  Don't bet on it.  This week can be construed as a boost for the stock of the defendants' companies and as a loss for the children who will be exposed to lead paint.

• As for the possible verdict in City of Milwaukee v NL Industries, if it's in favor of the defense, the impact of these three victories will be exponential.  However, Wisconsin law seems to favor the plaintiff.  WI has always been a state supporting market share liability.

Copy of the official version of the NJ opinion available free from Mgenova981@aol.com.