"Lead paint lawsuit might be a lot of fuss over a receding problem," LEGAL NEWSLINE

Timing is everything.  And the timing of the Rhode Island Health Department declining numbers of new incidences of lead poisoning is just a few weeks before the RI Supreme Court's oral arguments re the landmark RI lead paint public nuisance trial II. LEGAL NEWSLINE, which covers state attorneys general and state supreme courts, reports that, in the light of this report, "the lead paint lawsuit might be a lot of fuss over a receding problem."

Actually, as LEGAL NEWSLINE's John O'Brien notes, new cases have been steadily and significantly plummeting over the past 10 years.  Ironically, it was about that time that the lead paint public nuisance lawsuit activity began in RI.  According to the 2007 statistics recently released from the RI Department of Health, only 1.3 percent of children being tested in the state had in their blood elevated levels of lead.  That represents a 22 percent reduction from 2006.  Back in 1998, 6.6 percent of children tested had elevated levels of lead in their blood.

These figures contradict the plaintiff's asserting during RI II that the progress on reducing childhood lead poisoning had reached a plateau and would not decline further without intervention.  The form that intervention should take, the plaintiff contended, was abatement of lead in every residence where it was still present.  The estimated cost for that abatement in a plan presented to RI Superior Court by the plaintiff was in the ballpark of $2.4 billion.

With these 2007 figures of new cases of elevated levels of lead in the blood of children at 1.3 percent, that abatement plan - in fact the whole lead paint public nuisance litigation - seems cartoonish.  Where's the public nuisance? 

O'Brien reports that the RI Attorney General's office, which put RI I and RI II in play, had no comment.  Could this saga be renamed: The Case of the Vanishing Public Nuisance?

In addition, as many lead paint watchers know, on Monday, there was another possible blow to the strength of the plaintiff's appeal before the RI SC.  Those former lead paint companies ensnared in the Santa Clara, California lead paint public nuisance lawsuit submitted briefs, accompanied by numerous exhibits, challenging the validity of the contingency ruling by a CA appeals court. [Retrieve whole packet here Download rsresponsetorespondentscitationofsupplementalauthority.pdf ] Those briefs were filed with the RI SC and the CA Court of Appeal Sixth Appellate District.  They contend the the appeal court's "opinion contains factual and legal errors regarding the purported 'control' exception to the principles articulated in 'Clancy.'"

On behalf of Atlantic Richfield, NL Industries and Millennium Holdings the brief to the RI SC asks that the Court take into account its petition to CA for a rehearing on contingency.  This could position contingency as again a highly contentious issue before the RI SC. 

With Atlantic Richfield defense attorney John Tarantino as their point man, the RI lead paint defendants requested in April 2006 that the RI SC review the contingency matter.  The Court agreed, that is, it didn't toss it.  However, it indicated that it would put the review on hold until other substantive legal issues have been resolved.  A serious challenge to the CA contingency ruling could have the Justices of the RI SC look at this through a different lens than it had before the petition was filed in CA.