Lead Paint Litigation, including "Thomas" - Richard O. Faulk Comments

"It may be true, as the press has reported, that many lawyers across the nation are watching the 'Thomas' trial closely," starts out Richard O. Faulk on his most recent commentary on lead paint litigation.  Richard is Chair of Litigation at Texas-based Gardere Wynne Sewell.

"But for one very good reason, they should not be preoccupied - the future of lead paint litigation will not be decided in the microcosm of one case, not 'Thomas,' not even one as large as the Rhode Island controversy," continues Faulk.

Here is the complete text of his actual opinion:

"Surely plaintiff lawyers must know by now, that the paint defendants are not prone to seek purely economic solutions, and they are certainly not looking for justifications to start down the path to settlement. They are motivated by principles - sound principles of law that have been vindicated by almost every appellate court that has addressed the issue.  Only Wisconsin's Supreme Court has strayed - and then only on the single issue of alternative or 'market share' liability.

"Even then, the Wisconsin Supreme Court's decision came in the context of summary judgment proceedings, not the complex record generated by a plenary trial on the merits.  Many of the thorny issues that were merely speculative in the earlier appeal will be explored in excruciating detail in the current trial - and it is entirely possible that a complete record will demonstrate the fallacies of 'market share' theory more convincingly than a superficial summary judgment scenario.  Wisdom suggests that plaintiff counsel should take nothing for granted.  The defendants are out to vindicate a solid legal position, and if that means producing a record sufficient to illustrate the errors of the Court's prior decision, they will certainly do so.  Of course, that assumes that the defendants lose the current trial - which is by no means likely.

"The defendants' resistance to economic exploitation is contagious.  Merck's recent stalwart resistance is only one example. Manufacturers are progressively realizing that torts become 'mass torts' by pursuing settlements instead of trials.  For decades, plaintiff counsel has tried and, in many cases, succeeded in motivating defendants to 'solve' their problems by 'buying their peace.' For many defendants, that pitch now rings hollow.  They know that genuine peace is never purchased at the expense of compromising sound legal principles.  So long as those principles stand - and there is no sign that they will fall in the foreseeable future - those who seek 'long term' signs from cases like 'Thomas' will remain disappointed."

Richard Faulk's other opinions on lead paint litigation are posted on the firm's website under "attorney bios."

Reader response to Richard Faulk's thinking is welcome. Please contact Mgenova981@aol.com.