RI SC lead paint amicus from 16 AGs - Manifesto in defense of public nuisance

No wonder the 16 state/commonwealth attorneys general fought to have their amicus brief filed with the Rhode Island Supreme Court for the lead paint appeal. 

Yes, that document indicates support for the plaintiff, that is the state of RI.  But, as I interpret it, its agenda is much more ambitious. I see it as a manifesto on behalf of the validity of public nuisance. [You can access that 38-page document by clicking on the link "accepted the amicus brief" on LEGAL NEWSLINE's article "AGs argue their right to file lead paint suits."]

Timing is everything.  And the timing is just right for issuing this part vindication, part celebration of public nuisance.  After the ruling came from the California appeals court that contingency was permissible in the lead public nuisance case, tort reformers immediately saw the implications: Public nuisance would now be applied to products way beyond lead paint. [Here you can read that court's opinion Download H031540.pdf ].  Not only was the nation going to probably see more lead paint public nuisance lawsuits.  It was going to see lawsuits against products like autos, pharmaceuticals, food, beverages and computers formatted as public nuisance complaints.  A defeat for the plaintiff in the RI SC review, of course, could impede that momentum.

In the brief, the 16 AGs make their embrace of public nuisance explicit and they keep reinforcing that point. For instance, in the "Introduction" to the document, this is the second paragraph:

"This danger posed by lead paint exposure motivated Rhode Island's Attorney General to bring a public nuisance lawsuit against the manufacturers of the lead pigment used in paint. The amici State Attorneys General support the Rhode Island Attorney General's authority to file this suit, both because the same lead paint hazard exists throughout the United states and because the Attorneys General share a broader interest in the principle at issue: keeping the public nuisance doctrine available as a means to protect the public interest from major harm."  [Emphasis mine.]

The fifth paragraph in the "Introduction" goes on to argue that the use of public nuisance cause of action to "abate public harms" does not replace or conflict with traditional products liability law.  In fact, contend the AGs, they "complement one another."

The contention is that the motivation of a public nuisance suit is:

" ... not to obtain damages as compensation, but to abate the nuisance and stop the ongoing harm.  Indeed, what the Attorneys General advocate here is not an expansion of existing law, but the straightforward application of well-settled doctrine in light of current problems and scientific knowledge."

Clearly, the ruling by the RI SC is not only important to the parties involved but also to the future of public nuisance. That concept will hover over that court room on May 15th.  [Here is my new e-book on public nuisance from a business and Wall Street, not a legal, perspective. You can download it free. Download publicnuisancevoodoo.pdf]

The AGs and their state/commonwealth colleagues who signed onto this amicus brief are:

• G. Steven Rowe, AG - Maine; Christina M. Moylan, Assistant AG - Maine
• William H. Sorrell, AG - Vermont; Elliot Burg, Assistant AG - Vermont
• Marc Dann, AG - Ohio; William P. Marshall, Solicitor General, Robert J. Krummen, Deputy Solicitor
• Dustin McDaniel, AG - Arkansas
• Beau Biden, AG - Delaware
• Bill McCollum, AG - Florida
• Alicia G. Limtiaco, AG - Territory of Guam
• Mark J. Bennett, AG - Hawaii
• Jack Conway, AG - Commonwealth of Kentucky
• Catherine Cortez Masto, AG - Nevada
• Gary K. King, AG - New Mexico
• W. A. Drew Edmondson, AG - Oklahoma
• Robert E. Cooper, Jr., AG - Tennessee
• Mark L. Shurtleff, AG - Utah
• Darrell V. McGraw, Jr., AG - West Virginia.