Law And More

LEGAL NEWSLINE's John O'Brien on RI Supreme Court Filings on lead paint

LEGAL NEWSLINE's John O'Brien is deep into not only Dickie Scruggs' troubles but also the ongoing lead-paint public nuisance litigation saga in Rhode Island.  Just before Christmas, O'Brien did a three-part series on where the litigation is.  Today, he jumped right back in and covered in detail the flood of briefs going from defendants and plaintiff to the RI Supreme Court.

Among other coups, O'Brien snagged a provocative quote from Jones Day attorney Charles Moellenberg who is part of the defense team representing Sherwin-Williams.  In the piece, Moellenberg says:

"The trial court rulings were so aberrational that no other state could fit its law into what happened in Rhode Island. 

"It was remarkable. The State didn't have to prove the product existed in Rhode Island today and the jury didn't have to think they did anything wrong, the two foundations of any type of tort.

"They [the jury] ended up trying a hypothetical case."

O'Brien also provides extensive quotes from both the three defendants' and the plaintiff's two briefs. 

One plaintiff brief requests, in addition to any clean-up costs, about $26 million to compensate various state programs which took on the lead hazardous problem in terms of prevention, diagnosis and treatment.  The other brief requests the RI Supreme Court to overturn the two contempt findings against RI Attorney General Patrick Lynch by Judge Silverstein.  AG Lynch was fined $5000 from his personal funds.

Lead-Paint Amicus Brief to RI Supreme Court Takes On Trial Court Alleged Misreading of "Wood v. Picillo"

Today, another brief making its way to the Rhode Island Supreme Court regarding RI Lead Paint Public Nuisance II was an amicus one from the National Paint & Coatings Association, Inc. [NPCA]. 

It was filed on behalf of the defendants NL Industries, Millennium Holdings and Sherwin-Williams.  The 45-page document argues that the trial court allegedly misread and therefore misapplied Wood v. Picillo. NPCA is a voluntary, nonprofit trade association representing some 300 manufacturers of paints, coatings, adhesives, sealants and caulks, raw materials suppliers to the industry, and product distributors.

In its brief, NPCA contends that the Superior Court relied on Wood v. Picillo, a hazardous waste storage case, to misinstruct the jury to find liability that would be predicated merely on the "nature of the injury" [e.g. dangerous lead exposure) and thus the state would not have to prove any "conduct causation" by the defendant ancient lead pigment producers.

To the contrary, argues the NPCA, Wood involved ultra-hazardous activity.  That included 50-foot flames from chemical explosions, "sink holes emitting chemical odors opened in the earth" and groundwater contamination.  Given this ultra-hazardous activity, the condition clearly constituted "unreasonable interference with a right common to the general public."

The brief goes on to say that, as the Rhode Island Supreme Court has explained in Selwyn v. Ward [2005], "strict liability attaches when a plaintiff's injuries are proximately caused by some ultra-hazardous or abnormally dangerous material."  And in Splendorio v. Billray Demolition Co. [1996] it was noted that "If the rule were otherwise, virtually any commercial activity involving substances which are dangerous in the abstract automatically would be deemed as abnormally dangerous.  The results would be intolerable."

In essence, declares the NPCA, the trial court ignored the requirements that a public nuisance involves a public right, like the situation in the hazardous waste sit and other Rhode Island pollution cases; and that the defendants conduct be shown to be an intentional and unreasonable interference with that public right [e.g. to public health and safety], in a cause of action involving individual dwellings, which does not constitute a public nuisance.  The result, as the Rhode Island Supreme Court has previously declared, is "intolerable."

Those wanting to read this interesting line of argument can obtain the brief from me at no charge Mgenova981@aol.com.

RI Lead Paint Plaintiff Files Brief on Compensatory Damages with State Supreme Court

It's been a day of briefs - fat from the defendants, only 50-something pages for plaintiff - to the Rhode Island Supreme Court regarding myriad issues related to the landmark RI Lead Paint Public Nuisance Trial II.

Ironically, both sides request, among other remedies, a new trial.  The defense wants the finding vacated or a new trial.  And the plaintiff also is requesting in its brief on compensatory damages that the "bench decision be reversed, the judgment in favor of the Defendants be vacated and new trial ordered for the State to prove its claim for compensatory damages."

Another irony: Like the three defendants - NL Industries, Millennium Holdings, Sherwin-Williams - the plaintiff - the State of RI - questions if the trial judge [Michael Silverstein] made errors in this issue of compensatory damages. 

Those damages, which the state estimates to be well over $26 million, would compensate the state for the funds spent in preventing, diagnosing and treating elevated levels of lead in the blood of the children. Since 1999, indicates the brief, the RI Department of Health has found over 37,000 children in the state with elevated blood lead levels. The primary, though not the only cause, is lead paint in residences.

The brief contends that there should have been compensatory damages awarded.  They were not, asserts the state, for these reasons. The Judge "eviscerated the State's claim by granting motions to preclude testimony of two witnesses.  Accordingly, the issues presented are:

1. "Whether the trial justice erred by precluding any evidence of the amount of damages and thereby categorically disposing of the State's damages claim.
2. "Whether the trial justice erred in entering judgment as a matter of law on the State's compensatory damages claim."

The almost infinite number of issues embedded in RI II may make it the most complex civil case to ever be tried in RI.

A copy of this brief is available at no charge from Mgenova981@aol.com.

RI/AG Appeal to State Supreme Court of Contempt Findings

On January 31, 2008, the Rhode Island Attorney General Patrick Lynch and the state of RI filed a brief with the RI Supreme Court to appeal the findings of contempt by the RI Superior Court on November 28, 2005 and May 1, 2006.  Those findings were against  AG Lynch.  In reporting on the content of this brief, I will often rely on material taken verbatim from the filing. Copy of this particular 52-page brief is available at no charge by contacting Mgenova981@aol.com

Those findings of contempt had been appealed twice previously, but not to the RI Supreme Court. The two had been consolidated because "of the extraordinary legal issues raised by those findings and because of the complex interplay of the latter findings on the erroneous holdings of the earlier ruling."

Contempt of November 2005

On November 18, 2005 Superior Court held AG Lynch in contempt for violating Rule 3.6 of the Rules of Professional Conduct.  The matter concerned the AG's refusal "to engage in a substantive response to a false and defamatory statement a reporter attributed to defendants ..." At issue was in essence one-half a sentence.

Yet, that "half sentence response has never resulted in a referral to, charge of or finding of improper conduct by disciplinary counsel or this Court even though the half sentence has been widely briefed and disseminated through the press." Also, the brief points out, "the factual findings made by the lower Court ... fully support the speech of the Attorney General that brought him before the Court." Third, nothing in that half-sentence "initiated, played a part in, led to or supported the lower Court's sua sponte contempt hearing."

As the AG and the state of RI view this the issues are:

• "Does or can a short, legitimate and spontaneous defense of unethical conduct attributed to defendants and made against public servants acting for the public interest violate Rule 3.6 of the Rules of Professional Conduct?"

• "Does the lower Court have power and authority to punish a short, legitimate and spontaneous defense of charges of unethical conduct attributed to defendants and made against public servants acting for the public interest with a prior restraint of speech that is intended and does silence both public and private conversations related to and unrelated to this action if uttered by the duly elected Attorney General to any person in any place at any time, even if necessary to comply with the same Court's prior Order requiring him to fully control this litigation?"

Contempt of May 2006

On May 1, 2006, Superior Court found AG Lynch in contempt regarding two statements.  One was published in the BOSTON GLOBE on February 23, 2006 and one posted on the AG website February 22, 2006 [Verdict in RI Lead Paint Trial II was delivered on February 22, 2006].

The brief contends there is an "absence of any findings to support these rulings ... appellants must guess at the legal basis of the findings."

According to the AG and the state of RI there are essentially two issues involved:

• "Do the words 'duck and run' taken from an out of state interview violate an unconstitutionally overbroad and unduly vague prior restraint imposed on the duly elected Attorney General so as to authorize the contempt power of the lower Court?"

• Does the post verdict posting on an official web page that jurors are forbidden to view and are not viewing, violate a Court admonishment not to have a 'discussion' with or 'talk' to any juror?'

AG Lynch and the state of RI asks the RI Supreme Court for complete relief from the erroneous findings of contempt.

Two Briefs Filed by RI Attorney General's Office with State Supreme Court

In addition to the three briefs filed by the three defendants in the Rhode Island Lead Paint Public Nuisance Trial II with the RI Supreme Court, the RI Attorney General's Office also filed two briefs with that Court.  Mike Healey, Public Information Officer at the RIAG's Office provided the two briefs to me. 

One brief represents a consolidated contempt appeal.  The other is a brief of cross appellant State of Rhode Island on Compensatory Damages.

In two separate blog postings I will cover the highlights of each brief. 

I have to apologize to lead-paint watchers for devoting way too much coverage to the defendants' filings and points of view and too little to that of the plaintiff, that is, the State of RI.  That appeared to some to be biased reporting.  It probably was, but not intentional. I tended to gravitate to arguments I, as a business writer for 28 years, most easily understood - and could sympathize with.

Lead-paint watchers are encouraged to submit information and points of view which elucidate the position of the plaintiff.  Please contact Mgenova981@aol.com.

Lead Paint - Excerpts from Defendants' Briefs to RI Supreme Court

Before I deconstruct the three lead paint public nuisance defendants' briefs to the Rhode Island Supreme Court in detail, I want to provide excerpts that might be useful to lead-paint watchers:

From NL Industries' Brief:

"The trial court sanctioned liability without requiring the jury to find that any defendant acted negligently, or intentionally, or that any defendant knew or should have known of any alleged danger, or that any defendant ever sold lead pigment in Rhode Island or that any defendant's lead pigment was present on any building in this State at anytime, past or present." [page 1]

"If the trial court's jury instructions stand, the only question is which industry will be next.  What happens if hair spray is found to be a problem five years from now?  What about polyurethane?" [page 6]

From Millennium Holdings' Brief:

"If the aggregate presence of a product in the State is to be recognized as a new basis for liability, then certainly no person should be charged with responsibility beyond the extent to which that person's product is present in the State.  Yet, here each Defendant has been held liable to abate lead pigments in Rhode Island that it never made or sold, and without any evidence as to whether that Defendant's product is in the State and, if so, how much." [page 1]

Excerpts from Sherwin-Williams' Brief:

"The end result was a trial so stacked in Plaintiff's favor that Defendants effectively were forced to defend themselves with both hands tied behind their backs, while attempting to strike at a moving target - a trial so unfair in its conception and execution as to violate the U.S. and Rhode Island Constitutions." [page 7]

"It is impossible to know what comprises the alleged nuisance when the nuisance is an unidentified fiction over which Defendants exercise no control. It is impossible to challenge actual cause where there is no specifically identified nuisance or injury.  It is impossible to argue that others are the sole or alternative cause of any harm, a key defense, when no particular injury, no specific property, and no other potential cause can be investigated.  The conception of the nuisance thus relieved Plaintiff of required elements of proof and denied Defendants the ability to rebut any particular instance of the purported nuisance. It created, without fair notice and after the fact, limitless, endless liability, without proof of fault, actual causation, or proximate causation." [page 6-7]

"The suit and the legislative approach are very different universes about to collide.  Based on the recognition that well-maintained properties are not dangerous, the Lead Poisoning Prevention Act places the responsibility for lead remediation on the property owners who have control over the condition of the paint and creates incentives to encourage owners to maintain their properties." [pages 3-4]

"A jury of six people was encouraged to issue a verdict, and Plaintiff insists that the jury has issued a verdict, tantamount to new statewide policies for public health and manufacturer liability.  The common law is not filling a gap; it is trespassing on the legislative domain and creating conflicting rules.' [page 5].

More to come ...

Reader input welcome.  Please leave a comment or email me at Mgenova981@aol.com.

RI Lead Paint Defendants File State Supreme Court Briefs - BREAKING NEWS

Today the three defendants in the Rhode Island Lead Paint Public Nuisance Trial II each filed a separate brief which was submitted to the RI Supreme Court.  The defendants are NL Industries, Millennium Holdings, and Sherwin-Williams.

In later posts I will go through the major arguments in each brief.  Here are just the highlights.

The defendants ask the Court to vacate the finding or to grant a new trial. They request this based on arguments each present in each separate brief.  Those arguments include:

• Nationally and in RI, levels of lead in the blood of children are at historic lows and continue to decrease.
• The lower court, that is the trial court, should have tossed the case. The major reasons for that are that the lawsuit disregards established rules for public nuisance in the state of RI and it bypasses clearly defined laws for dealing with product liability issues by manufacturers. Moreover, the defendants did not manufacture the lead pigments and lead paint for more than a quarter of a century.  Much of the contents of the lawsuit could have and should have been resolved in the state's general assembly.

After making these general arguments, each brief from each of the defendants focuses on a specific issue material to the case.  For instance, NL Industries discusses the public nuisance aspects. Millennium looks at the issue of causation.  And Sherwin-Williams takes up the matter of the lawsuit's subverting the authority and role of the state's general assembly.

I am anticipating receiving from the RI Attorney General Patrick Lynch's office its brief which has been or will be filed today in the RI Supreme Court.  It will contain at least three arguments:

• Its appeal of the ARCO acquittal [ARCO has 45 days to respond]
• Its appeal of the trial court's dismissal of compensatory damages.
• Its appeal of the contempt conviction of the state attorney general.

Here's what comes next:

• March 17th - Defense and plaintiff responses are due in the RI Supreme Court
• April 16th - Responses from both parties to those responses are due.

In May there will be the oral arguments from both sides.

More to come ...

Where's Jos Bank/Nanette Lepore - Are Law Firm Associates Taking Casual Dress Too Seriously

"Older people have long complained about the sartorial sloppiness of the younger generation.  But the divide is stark in the legal profession."  That's what Christina Binkley observes today in THE WALL STREET JOURNAL.  And her article titled "Law Without Suits: New Hires Flout Tradition" is about success, not style.  The raw reality of too-casual dress by associates, even with no clients present to see them, is that it is likely damaging their careers. 

As we all know, casual Friday bleeded into casual all-week.  And human nature being what it is, those not reared - i.e. Gens Y & X - on the correlation between wardrobe/grooming and upward mobility have become downright unprofessional in how they dress for work. They assume, wrongly, intellectual horsepower will win the day.

As a result, there's little attention paid to managing a message about one's professional self through a well-put-together image. And that the powers-that-be concede, both on and off the record, can be a deal-breaker in everything from being exposed to opportunity to a shot at making partner. Says Binkley, "Legal associates who aren't sartorially prepared may not be invited along to a new-client pitch or to take a leading role in court, regardless of the office's stated 'business casual' dress code."

What I tell Gen Xs and Ys I coach is that dress and appearance, from hair to nails to polish on the shoes, are symbolic.  Others see those markers as indications of how we organize our work and our lives.  Being sloppy screams bad things about us.  That's just the way it is.

There's more, I instruct them.  Never assume that one can be off-stage.  In professional life, there is no off-duty sign that we can turn on the way cab drivers do.  I have had bosses who called at weird hours just to monitor drinking habits. The recommended read on professional life as total staging is Erving Goffman's "The Presentation of Self in Everyday Life."

My advice to ambitious law associates: Create a comfortable appearance in professional attire. Your peers will make fun of you if you look too partnerish.  So, it's the art of dressing well but looking like it was just put together. 

In families with pedigree, the son's getting that first custom-made suit is a rite of passage.  Everyone recognizes by the cut of the suit that he has joined the tribe as an adult.  Not dressing the part of an adult signals a clinging to a more irresponsible, rebellious, self-absorbed stage of human development.

At the landmark Rhode Island Lead Paint Trial II, Jones Day managing partner Laura Ellsworth wore Chanel.  And she was shrewd enough, given her good legs, to wear open-backed shoes when she made a presentation in court on IQ.  All the male defense attorneys had brandname suits and carefully cut hair.  No matter how much snow and ice out there on RI streets, none had boots on in court. If they wore them in, they tucked them into their attache cases.

   

   

Think Tanks Booming - Part Politics, Part Fear/Anger

It was Rudy Giuliani's successful application of the Manhattan Institute's "Broken Windows" theory about reducing crime that helped bring think tanks mainstream.  Since then, diverse politicians, ranging from Hillary to Huckabee, rely on their research and insights.  And so do many other groups.  As Elisabeth Bumiller reports today in THE NEW YORK TIMES, think tanks are a booming industry.  In fact, those such as the Center for Strategic and International Studies and the Brookings Institution can currently afford pricey new real estate.

In addition to the Rudy Effect, other factors behind this boom, says Bumiller, are "big money from Wall Street, a post-Sept. 11 sense that foreign policy matters and anger at the Bush Administration." But they thrive perhaps because they don't themselves crave direct power. They leave that to those who use their thinking. 

Richard Haass, who heads the Council on Foreign Relations, observes in THE TIMES' article, "Institutions like this [think tanks] don't possess power.  You're one of many voices in the political marketplace.  It's up to those in the marketplace who possess power - congressmen, people in the executive branch - to run with one of your ideas."  I predict the think tanks will find another Rudy to run with some of their bigger ideas.

U.S. Attorney General John Edwards - No Bobby Kennedy

The rumors that former plaintiff attorney John Edwards could be our next U.S. Attorney General have taken on credibility.  Edwards is out of the race for President.  Barack Obama, who it's opined would choose Edwards, is claiming his own space in this roller-coaster campaign as The Democratic Establishment turns on The Clintons [Even the liberal THE NEW REPUBLIC discussed "Clinton fatigue" in its February 13th article "Over-Billed"].

The fear is that Edwards unleashed again into law would morph into another intense Bobby Kennedy. Business interests are worried.  But, remember who will be the boss: A shrewd centrist Obama.  He will keep Edwards on a short-enough moderate leash.  Of course, there will be pet causes such as downsizing executive compensation.  But they will be safe and meant for across-the-board satisfaction.  Anyone not part of the C-level would root for those in the top layers of the executive suite earning much less and being banished from Paradise with no golden parachute.

Edwards has changed since his days as a trial lawyer.  He had to in order to run for Senator, endure John Kerry, and buck public opinion against his continuing his presidential campaign with his wife's illness.  He understands managing the message, the art of compromise, and the power of being seen as a statesman vs. a ferocious litigator. 

I say ask not what dangers Edwards poses to tort reform but what suggestions we can provide him to return common sense, as Philip Howard recommended, to the legal system.