"Picture fading for lead paint litigation," Reports NATIONAL LAW JOURNAL's Amanda Bronstad

Titled "New Rulings Hinder Nuisance Claims," an article in the current issue of THE NATIONAL LAW JOURNAL [paid subscription] seems to indicate that the worst might be over in lead paint public nuisance litigation. 

Reported by Amanda Bronstad, the piece starts out, "The picture is fading for lead paint litigation." It goes on to cite the recent state Supreme Court rulings in Missouri, New Jersey and Ohio, as well as the win by NL Industries in Milwaukee.  Bronstad interviews both defense attorney Mickey Pohl of Jones Day, representing Sherwin-Williams, and plaintiff attorney Ronald Scott of Bracewell & Giuliani, who represented St. Louis in Missouri case.  Both sides agree that the chances of a lead paint public nuisance suit winning in other places are slim.

Since Rhode Island Lead Paint Trial II began November 1, 2005, I came to know both Pohl and Scott. Both are brilliant in law and seem to have a golden gut about trends in legal proceedings.  So, their assessments are ones we should take seriously.

However, back on April 23, 2007, LAWYERS USA [paid subscription] published an article titled "Lead paint industry on the defensive."  Reported by Corry E. Stephenson, the piece described how the state win in the RI lead paint II back in February 2006 had "sparked a new wave of lead paint litigation."  Stephenson quoted plaintiff law firm Motley Rice lead attorneys at RI lead paint II Fidelma Fitzpatrick and Jack McConnell. 

My hunch is that it's premature to make predictions about the pending lead paint public nuisance litigation and if new ones could be configured in imaginative ways.  As one defense attorney cautioned us, "Watch California and watch Rhode Island." 

Since he warned us, sure enough an amicus brief has been filed in CA requesting an appeal of the ruling against contingency in public nuisance. The arguments were compelling.  In Ohio federal court, the judge didn't strike down contingency across the board in city suits.

In RI, the state will be submitting its abatement plan on or before September 15th.  No smart money is betting on the the ruling from the RI Supreme Court. My hunch is that the case will move to federal jurisdiction on the basis of constitutional issues.   

In addition, in Milwaukee the plaintiff is requesting the verdict be appealed because of faulty jury instructions.  And in the personal injury "Thomas" trial in Milwaukee, Wisconsin, starting October 1, a very dangerous concept of liability is being used.  Motley Rice will be representing the plaintiff.  From that a whole new strategy could emerge.  In the "Lead paint industry on the defensive," article Motley Rice attorney Fitzpatrick was quoted as explaining, "The theory in this case [Thomas v. Mallett] is that all of the pigment manufacturers engaged in conduct that created a risk of harm to the public - especially children who came into contact with the pigment - and that by creating that risk of harm, the manufacturers are joint and severally liable." Could other entities also adopt this strategy?

To "Watch California and watch Rhode Island," I add watch "Thomas." Motley Rice seems to be laying low right now.  A win in "Thomas" could establish a new platform for litigating against the former lead paint industry.  At stake is the Motley Rice brand.

Reader comment welcome.  Please contact Mgenova981@aol.com.