"I think the RI case is pivotal," Columbus, OH attorney

All eyes have turned to Providence, Rhode Island.  This Thursday it will be the setting for the RI Supreme Court oral arguments for the landmark lead paint public nuisance lawsuit.

Today, the influential Ohio conservative newspaper the COLUMBUS DISPATCH carries a five-part series of articles on lead paint.  In one, titled "Should paint makers pay," by Mark Ferenchik, there is a brief interview with attorney John P. Kennedy with Crabbe Brown & James.  Based in Columbus, OH Kennedy, reports Ferenchik, "teamed up with  RI law firm to help Columbus with its lead paint suit." Kennedy observes, "I think the Rhode Island case is pivotal." 

Columbus as well as the state of OH both still have in play lead paint public nuisance lawsuits.  A number of other cities in OH such as Akron and Cincinnati have dropped their suits.  For the city of Toledo, the court ruled against the plaintiff and that was the end of that.

The RI SC will give its ruling about two months after the oral arguments.  But legal and public policy analysts following this litigation for a decade aren't optimistic that the ruling will end this saga.  There are so many legal and public policy issues embedded in what the case has become. 

Therefore plaintiffs and would-be plaintiffs as well as current defendants and companies which could be pulled into the litigation will probably receive no clear signal where this kind of litigation could be headed - not in lead paint per se and not in the whole new field of public nuisance lawsuits. The problem with that ongoing ambiguity is that the plaintiff bar could over-simplify so-called "victories" in the litigation.  That could encourage other cash-strapped states and cities to also consider filing either lead paint or other kinds of public nuisance litigation.

On the other hand, the defendants, which are public companies, have to keep informing the investment community about the possible implications of the litigation.  There is no definitive statement the defendants such as Sherwin-Williams, NL Industries and American Cyanamid could make to Wall Street right now or perhaps even after the RI SC ruling.  The immediate result has been that some of the companies' stocks have been undervalued.

Of course, if the RI SC rules to overturn the verdict in favor of the state and acquit the defendants, the game could be over for the plaintiff bar, at least in relation to lead paint.  OH will probably throw in the towel.  And California, which had a taste of victory when the ruling against contingency was overturned, could also decide to drop its interest in suing the former paint companies.  The defendants have filed an appeal with the CA court to have a re-hearing on that ruling.  In addition, those defendants submitted to the RI SC a copy of that appeal and asked that court to also consider it in its ruling.

The five-part coverage on lead in the COLUMBUS DISPATCH includes:

• Lead's legacy
• Why you should worry about lead
• Program helps abate lead fears
• Should lead makers pay?
• Lead kills mining town.