That RI SC Lead Amicus From 16 AGs - What Should We Be Reading Into This?

The Institute for Legal Reform was among the tort-reform sites which linked to this blog's post on the amicus brief from 16 state/commonwealth attorneys general.  It had been filed with the Rhode Island Supreme Court in support of the plaintiff - that is, the state of RI - in the lead paint public nuisance appeal. The thrust of that brief was an argument in favor of the novel legal theory of public nuisance.

No newsflash, lead paint watchers asked each other and me: What should we be reading into this?

Well, at the top of the list, of course, we should recognize the AGs probable agenda to expand, perhaps aggressively, the application of public nuisance to product categories beyond lead paint.  In this era filled with fear about global warming and environmental contaminants, this approach could have plenty of grassroots support.  AGs on the front lines of public nuisance could become populist heroes like Ralph Nader had been in the early 1970s.

But for lead paint watchers what they sense they should be reading in is another upsurge in state and city lead paint public nuisance litigation.  This could begin in California, spread through that state and then move eastward.  The recent Santa Clara contingency ruling increases that possibility. [Read ruling here Download H031540.pdf]

Should that happen, will the former lead paint companies, ranging from Sherwin-Williams to DuPont, be bullied into a 21st century analogue of the Tobacco Settlement? 

I haven't heard a yes on that scenario.  Those companies have already invested years and mega defense money to take this to trial by jury.  No one anticipates they will cave.  As one source close to the defendants told me, "Most of the leadership at those companies believe this litigation is wrong.  They will oppose it on principle.  And they will go bankrupt fighting it in the courts rather than settle."

Also, the naive belief that such settlements are good public policy has been dashed.  So much of the money from the tobacco settlement which was supposed to be plowed into preventing youth from beginning and to pay for tobacco-related illnesses has been used otherwise. The public might not rally around taking the former lead paint defendants to the cleaners. 

In addition, those Nader-like plaintiff-lawyer heroes like Dickie Scruggs and Bill Lereach have been shown to be crooks, not selfless reformers.

It seems common sense that what we can anticipate is for AGs to again try some form of lead paint public nuisance litigation if the RI SC decision goes against the defendants.  That will prolong the battle for the defendants, including moving the case to federal jurisdiction.

But victory, based on the legalities involved, seems in the cards for the former lead paint companies. Remember it was the legalities which convinced juries in both "Thomas" and "City of Milwaukee v NL Industries" to acquit the defendants. It was also those legalities which persuaded the Supreme Courts of Missouri, Ohio and New Jersey to rule in favor of the lead paint defendants and against public nuisance.  Also, the CA contingency appeals court decision could be overturned in that state's supreme court.

Those attending the RI SC orals or taking them in on the webcast are interested in just that: The legalities.  How strong they come across will be partly shown in the presentations and in the Justices' questions and comments.  Of course, we will have to wait for the official decisions. But we can get an indication how the defendants' arguments play in a whole other legal arena.