Is "Thomas" really that BIG? That's my question. So, I begged a prominent defense attorney not associated with either this trial nor with the lead paint litigation in general to explain to me why some experts are claiming "Thomas" to be everything from "the hinge upon which the door of public nuisance swings" to "not up there with Rhode Island." This very busy attorney took the time to help us sort out the importance or lack of it of "Thomas."
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Prominent defense attorney explains the dynamics underlying "Thomas," off-the-record:
"By today's tort standards, 'Thomas' by itself would not be such a big case. But, here's why it is getting so many resources from all sides. The big dollar, organized contingency fee folks (aided by public health zealots) have invested in these cases for 20 years now and have not gotten a single penny (unless one counts the DuPont 'agreement' in Rhode Island.)
"Motley Rice, which is usually at bottom a sharp pencil business that expects a return on its investments has pumped a lot into this project for the last decade with no return. Joe Rice and Ron Motley are probably asking Jack McConnell how he hung them out financially on this mess. The Rhode Island case is far from over and Motley Rice still doesn't even know if its contingent fee agreement will be upheld when that is finally decided.
"The draft abatement plan will be shown to have been a horrible mistake for the lawyers and political suicide for Rhode Island Attorney General Patrick Lynch. It is so far over the top, so clearly infringing the rights of private property owners who may not want their homes inspected even if owners don't want them inspected and forced relocations and renovations. It is hard to believe that any elected official would put his name on that. Wait until the people in Newport and Warwick find out that their AG [fueled by Motley Rice] wants properties inspected even if owners don't want that and their lawns covered in topsoil, mulch or paved over ... and 10,000 new construction workers brought into the state.
"It was very significant that the RI AG and its private law firm did not get money damages in Rhode Island. Some would examine how it happened that a big name firm like that did not get its damage evidence into the record. The California contingent fee in the Santa Clara case was obviously a big setback for the collective effort of the firms who have invested so heavily in this. I also think they were devastated by the big wins defendants got in New Jersey, Missouri (City of St. Louis case) and by the NL Industries' win in the City of Milwaukee case. It has been a terrible run for the plaintiffs.
"Those megabuck contingent fee firms which have invested in this area are now experiencing a sea change in the way Courts, the people and juries are looking at these mass tort cases. People have started to see the tobacco settlement and the asbestos cases as the frauds on the public that they were. According to Rand ICJ Studies, more than 70 public companies have gone bankrupt over the asbestos litigation with loss of pensions, jobs etc. and there are more claims and cases now pending than ever before. Smells even to the average Joe like a bunch of lawyer-driven phony claims. The Rand Studies also showed that about 70 percent of the total costs of the litigation go to lawyers and other service providers, not the injured people.
"The tobacco settlement was the biggest private wealth transfer in the history of the world but people now see that AGs and their political lawyer buddies who acted as counsel for the states in essence adopted a sort of one product tax on the minority (those who continue to smoke are statistically more from the lower socioeconomic strata). This is a tax on the little guy with a big chunk of what's collected going to fat cats like Motley on his 150-foot yacht and Peter Angelos with his Baltimore Orioles etc. Does anyone really believe that the money is making a big change in public health? Note also, that since the settlement gets paid over time the states won't get their money from the tobacco companies unless the companies keep making and selling cigarettes so they can make the payments. The states are effectively in a partnership with the companies. People are figuring out the hypocrisy here.
"So, maybe the people, judges and even the media are realizing that all who claim they are protecting the little guy may just be gaming the system cleverly. The indictment of Lerach in California and his guilty plea lend credence to the notion that some big-dollar plaintiff lawyers may be playing games to get the big fees. Judge Jack's ruling in the silica cases in Houston where she excoriated the plaintiffs' counsel and their experts for hire was another major indication of a sea change.
"Meanwhile, as the public becomes more skeptical about the mass tort stuff - with the plaintiff lawyers in 'Thomas' getting more desperate for a win - on the lead front, a number of things have changed.
"First, blood lead levels across America, which began to drop after lead was taken out of gasoline, are continuing to plummet so that now they are much lower than what America's 50-somethings had as children. Additionally, recent events have caused people to understand that paint isn't the only source of lead to which all of us are exposed. As Don Scott, lead attorney for NL Industries, likes to demonstrate, blood lead levels in the US are now on average about what they are, according to the scientific literature, in the Himalayas.
"In addition, thoughtful people have figured out that if the great lead scare driven by contingent fee lawyers and their experts result in waves of litigation, maybe some good companies [e.g. Sherwin-Williams] get put out of business as asbestos companies did, but the taxpayers are then going to have to rip apart their public water systems and pipes which are major contributors to lead exposure, not to mention soil in cities. Remember, state and federal government bodies specified lead paint and, for example, the city of New York had its own factory to make lead paint. I think reasonable people realize that slum landlords are the real winners if, in lieu of enforcement, everyone waits for paydays from good companies that haven't made this product in half a century.
"Thus, a lot of storm forces are aligning in the 'Thomas' case. It is somewhat surprising that plaintiffs did not have a more attractive case to lead off with. The facts concerning the family circumstances and the poor maintenance involved here will prove to be really dramatic. It plaintiff loses, even with the risk contribution theory, maybe the contingent fee types will have to re-examine whether this is not the kind of case worth chasing. It seems that Bracewell and Giuliani have decided to get away from new cases in this area.
"If the plaintiff wins in 'Thomas,' there will probably be more cases filed in Wisconsin. But there is a finite and probably manageable number of plaintiffs out there who ever had high blood lead levels and landlords are the obvious targets.
"If one looks at the facts of the cases individually (unlike in Rhode Island where no property specific evidence was allowed), defendants can defend and win these cases because usually when there is a high blood lead level there was a bad landlord or extreme parental neglect. Not always but usually.
"The plaintiffs in 'Thomas' could use a win to get a bit of a surge to try to drum up more cases, but the defendants here, unlike in asbestos, tobacco and breast implants etc. are not going to settle. Starting to settle only increases the number of claims, as with asbestos, and those defendants and the world know that now. No more easy money for the Ron Motleys and the Peter Angelos types. We are all smarter and the facts of the lead matters are much better for the defendants."
This blog deeply thanks this attorney for this pro-bono detailed explanation.
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