Law And More

Reformer of our E-Coli Times - Bill Marler Wins 2 Awards

Reform is a radical act.  So those doing it are bound to be controversial or, more kindly put, considered ahead of their times.  Well, in these these times of E-Coli epidemics, it's finally become Bill Marler's time.  This former enemy of the people has become a designated hero, twice over.  He is receiving two kinds of recognition for his pioneering work in food-borne diseases.

Number one, the King County Bar Association selected him for its 2008 Outstanding Lawyer Award. Dating back to 1886, KCBA is the largest voluntary bar association in the state of Washington.  Marler receives his award at the organization's annual dinner June 28th.

Number two, there's the Public Justice Award for an individual or organization whose efforts, courage, litigation, or innovative work results in the creation of a more just society."  It will be given to Marler tomorrow at the Law Day Dinner by the Washington State Trial Lawyers Association.   WSTLA champions "redress for injury to person, property, or civil rights."

It used to be what Marler did best was educate the public, government and industry about food contamination through his blogs.  In addition, he could be a pretty formidable advocate for victims of food-borne diseases in the court room. 

Lately, though, he's spending an increasing amount of time in Washington D.C. testifying on Capitol Hill and brainstorming with our nation's leaders about how to stop the E-Coli epidemic and prevent any new ones.  He learned his trade in the trenches of the Jack-in-the-Box E-coli outbreak during the early 1990s.  Next January whoever winds up in the White House would also become a reformer of their times if she or he appointed Bill Marler Food-Safety Czar.  In 18 months, I have a hunch, it will be the end of E-Coli in the nation's food chain.

Full Disclosure:  I met Marler when I defended his digital aggressiveness to THE WALL STREET JOURNAL et al.  That was two years ago.  Since then I've been assisting now and then with his blogs.   

RI SC - The Heart of the Matter

The language of liberalism is the language of the plaintiff bar.  And the increasing number of ex-conservatives, 2nd-gen counterculture, and newly poor are all ears. 

That's why it might be wise for the defense attorneys to veer off legal message now and then. Defense attorneys are known to be hardwired to questions of law.  One of those now and thens might be the Rhode Island Supreme Court oral arguments re lead paint public nuisance litigation.

N.B. Defense attorneys for Sherwin-Williams, NL Industries, Millennium and Atlantic Richfield. Along with how the plaintiff allegedly violated First Amendment rights and how witness David Rosner allegedly misrepresented his scholarly objectivity, why can't there can liberal words and phrases such as:

• "The right thing to do"
• "Society must step up to the plate"
• "Deliver justice to the people, especially the children, of RI"
• "The potential of every child in this state."

Sure, defense attorney Don Scott won "City of Milwaukee" and "Thomas" via the law.  But that was Wisconsin, months ago before economic gloom hung over us like death.  The oral arguments are in RI, one of the most liberal and economically depressed in the nation. In a proceeding about the welfare of children, there needs to be the heart of the matter. 

"People have called the top of this market before and they've always turned out to be wrong," Walter Olson

Today THE AMERICAN LAWYER joins THE WALL STREET JOURNAL, the Dean of New York Law School and sundry other pessimists.  They all declare the golden era over for the legal profession. In their article in THE AMERICAN LAWYER, Aric Press and John O'Connor opine that the past five years have been great ones of law firms.  Now, "The great run may be over."

Specifically, Press and O'Connor point to the few slots for equity partner.  Those high rollers at the top pulled the ladder up behind them.  Deal activity is down. While the litigation and bankruptcy business is there it, they report, "have not yet lifted all boats."  In addition, and what should be of most concern to new JDs, current associates, and partners not in favor, body count is bloated.  When firms feel that bloat on their bottom line, happy days could truly be over.

Such reports, of course, are told with glee by those whose jobs pay lots less than those at BigLaw and carry less status.  However, our faith in the creativity and work ethic of the plaintiff bar would encourage us to entertain another scenario.  That would include no cratering in demand for legal services, at least not the premium kind like required in lead paint public nuisance, pharmaceutical and ongoing tobacco litigation.

Manhattan Institute's Walter Olson put it this way when he was interviewed on tort reform for THE AMERICAN SPECTATOR.  "People have called the top of this market before and they've always turned out to be wrong," said Olson.  His blog Overlawyered.com, which never lacks for fresh material, is a testament to that.

My take is all the financial hand-wringing about BigLaw could be part of a conspiracy to further shrink the slots for equity partner, plain-vanilla partner, plain-vanilla associate, and plain-vanilla interns.  That's an old-line corporate trick which lawyers could use just as profitably.

OH AG Office - Scheduler was scheduled to fly to Turkey with Dann

Here's a tidbit from the Ohio Attorney General Office's while we wait for the internal report on the alleged harassment scandal, which is due this week.

The OH Association of Chiefs of Police tells THE COLUMBUS DISPATCH reporter James Nash that the scheduler was scheduled to accompany the AG Marc Dann on a four-day trip to Turkey.  Yeah, she had the ticket and, we can suppose, her PJs and/or sweats all packed.  The snag came when she had difficulty getting a passport to visit Istanbul.  Dann went by himself.  His ticket cost $1,425.  It's unknown whether the scheduler - Jessica Utovich - reimbursed the Police Association.

"Lead paint lacks the pizzazz or practicality of previous trial bar crusades," AMERICAN SPECTATOR

Could lead paint litigation become another tobacco?  That's on some minds as we move closer to the May 15th Rhode Island Supreme Court oral arguments on that state's landmark lead paint public nuisance litigation.

The answer seems to be no.  For one thing, as legal journalist William Tucker discusses in the April edition of THE AMERICAN SPECTATOR, "lead paint somehow lacks the pizzazz or practicality of previous trial bar crusades."  Vestiges of paint put on the wall half a century ago can't generate what a lit cigarette in a teenager's hands does in the public mind.  Also, since lead paint has been banned by the federal government since 1978, there's nothing to stop or ban or demonize. 

In addition, the former lead paint companies learned plenty from the ill-fated decision of the tobacco industry to settle.  That settlement didn't settle anything.  The lawsuits continued and still continue.  And the states receiving that windfall of tobacco money came to lust after more.  In terms of public policy, that "free lunch" created a lawsuit default among budget-strapped states.

Sherwin-Williams, NL Industries, Millennium Holdings, et al. won't make those same mistakes Philip Morris et al. made.  Merck, after duking it out on Vioxx in court and winning more than a few, caved to a settlement.  Since then, the whole company seems not to be able to catch a break on any front.

NJ, like RI, shows dramatic decline in children with elevated levels of lead in blood

Like Rhode Island, New Jersey was settled early in the founding of America.  That means plenty of older housing - which means the vestiges of lead paint.  But like the Ocean State, the Garden State has made significant progress in protecting its children from this health hazard.

In RI, the most recent numbers show that only 1.3% of children tested had an elevated level of lead in their blood.  In NJ, a study in 2005 found a 83% decline in children with an elevated amount of lead.  Bringing this deadly health menace under control has been hailed as a major public health success story of the late 20th century. 

NJ Governor Jon Corzine wants even more progress.  Yesterday, reports the NJ news network, he signed an executive order mandating inspections for lead paint hazards at least once every five years.  This order closes the loophole on rented single- and two-family homes.  Now all landlords will be identified for any violations on their property.

In RI, the Health Department is investigating the use of GIS technology [Geographic Information Systems] to eliminate that last 1.3%.  GIS software retrieves and processes information about the location of the presence of lead paint hazards. Then it generates maps of the properties not in compliance.  Health officials can then swoop in and address those violations quickly and cost-efficiently.  Currently the RI Department of Health has a call for bids for vendors to supply this system.

That last 1.3% - RI Considering GIS [Geographic Information Systems]

Rhode Island might be able to bring that last 1.3% of new cases of elevated levels of lead in the blood of children to zero through technology.  The RI Department of Health has a call for bids to bring it GIS - Geographic Information Systems technology.

Essentially GIS is a multidisciplinary software system increasingly used by health planners.  That's because it takes in data about the geography of a medical problem and produces maps.  That allows health officials to pin point exactly the source and then address it.

Since the RI Department of Health already has tracked the locations of the properties not in compliance with lead-safe laws, using GIS would provide an efficient solution to eliminating this remaining cluster of lead paint hazards.  Obviously, no multi-billion-dollar abatement plan is needed for this.  The World Health Organization uses GIS. 

RI Lead Paint Litigation - Battle of Slow News

The 2007 statistics about the 22% decline in new cases of elevated levels of lead in children's blood  vs. 2006 are posted on the Rhode Island Health Department website [click on "Lead"].  And, with only 1.3% of RI children tested in 2007 having elevated levels, that achievement even exceeded the target set by the RI health authorities.  That goal was in the 400s and the actual number of new cases was well below that.

Yet, lead paint watchers in the Ocean State reported to me that this news is no where to be found in RI media.  Among the MIA media is THE PROVIDENCE JOURNAL which has been tracking lead paint litigation since the late 1990s.  Why is this?  The timing couldn't be worse. The RI Supreme Court oral arguments on this landmark case will take place in just over two weeks.

Without the story out in RI, could the public policy part of this decade-old struggle between the plaintiff and the lead paint defendants become the battle of slow news.  Those numbers show that the war is over.  The children won.   

Unfortunately, without these statistics out there in RI, some on the front lines of the mission to eliminate childhood lead poisoning might keep pursuing the former lead paint companies.  They will continue to demand that Sherwin-Williams, NL Industries and Millennium Holdings do something that has already been accomplished: Manage the potential hazard contained in the vestiges of lead paint still in older housing. 

The reality is - and maybe the world is ready to listen - that Sherwin-Williams, NL Industries, and Millennium Holdings had nothing to do with creating the problem. Negligent landlords did - and do.  And the problem has been brought under control without any intervention or money on their part. 

The citizens of RI, their state agencies, and their dedicated outreach nurses who are protecting families from lead are to be congratulated.  Now, isn't it time to leave the lead paint defendants alone.  They might be able to go on with their business without the distraction of litigation if the RI media tell this new chapter in the lead paint story. 

Lead Paint - Where's the public nuisance, opines legal journalist

That 1.3% figure could represent a major hit to the plaintiff's oral arguments on lead paint public nuisance litigation before the Rhode Island Supreme Court.  The RI Health Department reports that among children tested for lead in 2007, only 1.3% had elevated levels of the toxic substance in their blood.  That's down 22 percent since 2006.  So, like, where's the public nuisance?  When the litigation was put in play in the late 1990s, that number stood at around 6.6%.

Here's what a legal journalist, who will be attending the RI SC oral arguments, has to say, off-the-record:

"I recall John Tarantino, who represents Atlantic Richfield, sounding this theme throughout the first and second trials.  The declining rate of lead poisoning was a central component of his defense.  Certainly the statistics work in the defendants' favor, especially those released for 2007.

"You may recall that during and immediately after the second trial, the defendants were upset with the Rhode Island Attorney General for what the defendants alleged was a withholding of data related to lead poisoning in the state.  It would seem that they had a reason to complain and it would also seem that the RI AG's office allegedly had a reason to restrict access to the data.

"This is an interesting storyline which may easily be lost amid the high profile bluster of the ongoing debate over the proper understanding of public nuisance law."

Reader opinings wanted on the recent RI Department of Health data.  Please contact Mgenova981@aol.com.

That RI 1.3% elevated blood lead level - What Changes?

Attorneys for both defendants and the plaintiff in the Rhode Island lead paint public nuisance litigation are likely busy bees right now.  They are revising parts of their oral presentations for the RI Supreme Court appeal on May 15th. 

The parts getting overhauled for the defense attorneys for Sherwin-Williams, NL Industries, and Millennium Holdings and the plaintiff attorneys for the state of RI are directly related to the 2007 statistics released by the RI Department of Health. Those show, reports John O'Brien at LEGAL NEWSLINE, that "only 1.3% of children tested [in RI] had elevated levels of lead in their blood, down from 6.6% in 1998."

For the defense attorneys, that means they can hammer in their oral statements:

• So where's the public nuisance if 1.3% of children tested have elevated levels of lead in their blood? That's down 22% from just 2006.  The whole contention that a public nuisance exists in RI because of the vestige of lead paint in housing comes under severe challenge.

• So why wasn't the steady and significant decline during the past several years brought to the attention of the jury in the second lead paint trial?  Defense attorneys claim that those figures in the LESS database had been available during that trial and for whatever reason had been kept from the jurors.  Instead, the plaintiff attorney Assistant Attorney General Neil Kelly asserted that the progress in the prevention of lead poisoning in RI had "reached a plateau."  Therefore, intervention, in the form of abatement, was imperative.

• Obviously, abatement is not needed, particularly abatement to the tune of $2.4 billion, which the plaintiff estimates in its abatement plan presented to RI Superior Court.

The plaintiff attorneys now have to hammer:

• Yes, a public nuisance did exist and still exists.  Perhaps one did exist at the beginning of the lead paint public nuisance litigation in the late 1990s.  But it will be difficult to present an argument that lead currently contributes to the presence of a public nuisance currently in RI. To do this would entail defaulting to rhetoric that even one case of an elevated level of lead in the blood is one case too many.  Good luck.

• That the numbers of a decline in new incidences of elevated lead levels [LESS Database] were available to the defense attorneys during the trial.  The plaintiff attorneys have to argue that if defense lawyers had been vigilant they would have known about the figure and if they had been persistent they could have obtained them. In addition, the assertion of a "plateau' condition would have to be defended. The LESS Database is a core point of contention between the two parties.  It was picked over during a two-day hearing in RI Superior Court in August 2006.

• The rationale for abatement of any kind.  Laws are on the books for the landlords to maintain their properties as lead-safe.  Defense attorneys argue that any other kind of abatement program eliminates the incentive for landlords to proactively prevent lead-paint hazards. Perhaps the best bet is to argue for a new trial for compensatory damages, that is, to recover the more than $26 million which three state agencies have already spent on the lead paint prevention, diagnosis and treatment.  However, if we read the defense attorneys' briefs rebutting the compensatory damages claim, this could be a tough sell legally.  If it's sold as a liberal argument about "fairness" and "doing the right thing," it perhaps could be sold to a RI SC.

In this long-running chess game, we are all eager to watch the masters' actual moves on May 15th.