"RI Lead Suit & Legislative Approach are very different universes about to collide," Sherwin-Williams SC Brief

The Sherwin-Williams brief for the Rhode Island Supreme Court takes on the macro issues, particularly the errors, in the landmark RI Lead Paint Public Nuisance Trial II.  Each of the three defendants deconstructed one set of arguments in this appeal of the verdict or, if that isn't granted, a new trial.

NL Industries' brief looked at how public nuisance, at least as the RI Supreme Court had ruled on it in Wood v. Picillo.  According to NL's interpretation that precedent had been misunderstood or misapplied in RI II. An amicus brief submitted to the High Court by the National Paint & Coatings Association argued along the same lines.  Millennium Holdings stared down the allegedly radical way in which the plaintiff/trial court had approached causation. The brief analyzed this from a Rule 50 perspective as well as the lack of evidence that each defendant actually caused the alleged harm.

Here Sherwin-Williams has the job of sorting out the BigFoot items of separation of powers, constitutional error, and trial error. Fortunately, this 91-page brief is artfully written so we just drift along with the almost Biblical cadences of the text.  For instance, the attorney authors use the repetitive quality of "Genesis" to reinforce an overall point. 

There is so much here, most of which we had read in earlier briefs concerning appeal to the Superior Court. 

There is the matter of, as the brief states, that "this suit [RI II] disregards the legislative will and goes at lightning speed to places where the Legislature has not gone, indeed has refused to go." Chambers v. Ormiston. 

This has been the situation not only in RI but in many other states with lead-paint hazards.  One prominent plaintiff attorney who participated in lead-paint trials bluntly told me that most legislatures won't touch it.  I asked this lawyer: Why not?  He said it brought together in one issue so many complex factors that, as this Sherwin-Williams puts it, it's just not a place legislatures went.  Yet the courts have rushed in.  Except in RI, the courts have been pushed out.  In Missouri and New Jersey, the state Supreme Courts shut that door tightly.  RI is atypical in still pushing through the courts a matter that is not within its authority.

Then there's the convoluted way in which "public nuisance" was re-configured into "the cumulative presence of public nuisance."  Probably the most persuasive argument here is that the defendants could not be liable for a single property, yet they were made to stand accused of creating a cumulative public nuisance in a lot of those properties.

Redundancy is another oft-cited issue.  Already there are solid laws on the books such as the Lead Hazard Mitigation Act which mandate landlords to maintain their properties which contain lead paint.  And the oft-cited question is: Why aren't these laws on the books being enforced regularly?  On the Department of Health's website is the list of properties with multiple violations.

Redundancy also takes the form of why is more or something different needed? The brief states, "The Department of Health [RI] also remains optimistic that it will reach the goal of eliminating childhood elevated blood lead levels (EBLs) by the end of 2010 - just two years from now."

Then there are the errors.  Trees died serving the cause of listing and describing those alleged numerous constitutional and trial errors.  Among them are:

• The trial court erred in defining nuisance in the cumulative way and creating a fictional composite claim.  These violated right to due process.  Moreover, the cumulative take is a fundamentally unfair and unconstitutional fictional composite claim.

• Admission of lobbying testimony and evidence as well as failure to instruct on right to petition government.  All this violated the Noerr-Pennington Doctrine.

• Failure to give a limiting instruction concerning testimony and evidence attacking defendants' speech and promotional activities, e.g. membership in the Lead Industries Association [LIA].

And then there were the alleged trial errors.  Among those Sherwin-Williams cites are:

• Evidentiary rulings were topsy-turvy.  The most relevant evidence seemed to be excluded and the highly prejudicial admitted.  For example, just the court's erroneous exclusion of property-specific evidence mandates a new trial.

• Failure to instruct the jury that plaintiff was required to satisfy the heightened standard of clear and convincing proof.  For instance, because plaintiff sought a mandatory injunction, the jury ought have been instructed under the clear and convincing evidence standard.

• Trial court erred in failing to grant a new trial given plaintiff's failure to disclose critical public health data. The data - known as the "Less Database" - documents a significant decline in new cases of elevated levels of lead in the blood of children in RI.  In itself, these numbers would have demonstrated to the jury that there was no plateau in the "public health success story" of reducing new cases and effectively treating those which occur in the field of lead hazards.  Incidentally, in RI those numbers continue to go down.

After making these arguments, the brief concludes with a request for the RI Supreme Court to reverse the judgment of the trial court and remand the case for entry of judgment in their [the three defendants'] favor.  Alternatively, it asks the High Court to vacate the judgment below, and remand the case for a new trial.

A copy of the Sherwin-Williams' brief is available at no cost from me at Janegenova@att.net.