Mealey's Lead Litigation Report - as of 12/12/07

LexisNexis Mealey's Litigation Report on Lead comes to us this month through the research and reporting of James Cordrey.  James is the Editor of LexisNexis Legal News and the go-to source for any questions about the details or documents of litigation.  His employer Mealey Publications and Conferences Group provides one-stop shopping for everything from copies of opinions to seminars on emerging and complex issues.  You can find out more at Www.lexisnexis.com/mealeys, James.cordrey@lexisnexis, or 610-205-1125.

RHODE ISLAND:

In the Rhode Island Lead Paint Public Nuisance Trial II, Sherwin-Williams filed separate motions seeking stay of abatement, a hearing on discovery issues, and valuation/disgorgement of DuPont Settlement funds.

All three RI II defendants filed motions opposing the state's abatement plan and requesting that the court strike the plan entirely or strike key sections of it because those parts are legally defective. This received wide media coverage.

The defendants' response to the state's $2.4 billion abatement plan is due on or before December 17th.  The original deadline of November 15th had been extended.

WISCONSIN:

In "Thomas," the plaintiff had to file post-verdict motions by December 12 and the defendants have to respond by December 31st.  On January 14th there will be hearing on those.

"imminent" is how Mealey's describes the filing of an appeal motion by the plaintiff in "City of Milwaukee v NL Industries.  On June 22, the jury decided in favor of the defense.  It agreed that lead paint constituted a public nuisance for the period of 1992 through 2006 but that NL Industries did not intentionally cause it.

OHIO:

On the city level, one lead paint public nuisance lawsuit remains - Columbus.

As for the state public nuisance lawsuit, there was an informal hearing with Ohio Attorney General Marc Dann.  Before the Ohio Supreme Court had ruled that "117" was in fact a law, Ohio filed on April 2 a single-count public nuisance complaint against 10 former lead paint makers including Sherwin-Williams, which is based in Ohio. 

NEW YORK:

On October 25, a New York appellate panel upheld the trial court's decision not to dismiss a coverage action as to NL Industries' liability for lead-paint claims when the coverage issue affecting other lead paint defendants such as Sherwin-Williams was permitted to proceed in Ohio. This case is Certain Underwriters at Lloyds, London V. Millennium Holdings LLC, et al.  This matter, of course, deals with the insurers' contractual responsibilities to indemnify lead paint/lead pigment manufacturers in public nuisance lawsuits.

CALIFORNIA:

In Santa Clara, California, the plaintiff is appealing the state's Superior Court judge's ruling against the use of contingency in public nuisance cases. It filed a response brief, arguing that those opposing the agreement distort state law. This dispute has attracted numerous amicus briefs from diverse parties.