Attorneys Donald Scott and John MacFadyen, representing NL Industries in the historic Rhode Island Lead Paint Public Nuisance II, might just be providing the RI Supreme Court with a narrow passageway through the maze of issues presented by both the defendants and the plaintiff. That "exit strategy" could be the High Court's own ruling in Wood v. Picillo, a hazardous waste storage case. This was the same line of argument that the National Paint and Coatings Association Inc. used in its amicus brief to the RI Supreme Court. That Court will hear oral arguments on RI II on May 8th.
Wood v. Picillo, contend Scott/MacFadyen, contains a classic case of how public nuisance had been understood and treated in trials prior to RI II. Public nuisance was conventionally "confined to site-specific conditions that impinge of publicly-shared rights." Typical of those are the smelly waste dump which contains myriad health hazards, including attracting children, and the factory which regularly releases pollutants into a waterway. In those situations it was the owner who was treated in law as the responsible party, not the manufacturer of the products.
Wood v. Picillo fits this template. The nuisance, state the authors of this brief, was "ongoing, intentional dumping of pollutants at a specific site, causing downstream damage to users of a public water resource. The conduct was tortious because it was intentional and was condemned by the science available at the time the dumping took place."
Because the trial court in RI II misunderstood and/or misapplied this precedent, the result, assert Scott/MacFadyen, has been a "legal hermaphrodite." They go on to expand on this metaphor. In this "legal hermaphrodite," they say:
"The cause of action was styled nuisance, but was actually based on sales of a product ingredient; it imposed extraordinary liability reaching far outside the parameters of traditional common law nuisance, yet did not require proof of knowledge, or negligence, or defect, or intentional infringement of a public right. It made the target corporations into insurers, not only of their own century-old products, but of an entire industry's century-old products; and it made them not only insurers against actual harm caused by the industry's products, but also against any harm which might occur in the future as paint containing lead pigments deteriorates from property owner neglect."
Specifically, these defense attorneys claim three errors:
- Whether the lower court erred in refusing dismissal of the Amended Complaint and granting judgment in favor of defendants based on the ground that historic suppliers of lead pigments are not liable in public nuisance for claims of harm or risk predicated on the existence of lead pigments in paint used in Rhode Island buildings.
- Even if the doctrine of common law public nuisance can be applied to the suppliers of lead pigments, whether the retroactive imposition of liability under the expanded public nuisance doctrine would deprive defendants of due process of law.
- Even if the doctrine of common law public nuisance can be applied to the suppliers of lead pigments, there is the question of whether the lower court erred in its instructions to the jury concerning knowledge and fault.
What the legal representatives for NL Industries request from the RI Supreme Court is "to grant their appeal, to reverse the judgment of the trial court and to remand the case for entry of judgment in their favor. In the alternative , for the reasons stated ... in this brief, defendants ask this Court to grant their appeal, to vacate the judgment ... and to remand the case for a new trial."
A copy of this NL Industries' brief is available at no charge from me at Jgenova@att.net.