In his second installment in FINDLAW on the landmark Rhode Island lead paint public nuisance litigation, Anthony J. Sebok, Cardozo Law Professor, presents a contrarian deconstruction of the RI Supreme Court oral arguments. Let's cut to the chase.
He opines that the defense did not dominate. [So much for our perhaps misplaced euphoria.]
He ascribes the perception of a strong defense performance that many of us walked away with to the alleged sympathy of the four justices to the defendants' legal arguments. He views the Justices questioning the defendants in a rather gentle manner.
We could take Sebok on there. We might interpret the possible deference of the Justices as a message to the plaintiff: We ain't happy about this mess you parked in our lap, and in front of a global audience. The RI SC tends to be low-profile and might have deeply resented being dragged into the spotlight on momumental legal issues.
As for predictions - and we have absorbed plenty of those since May 15th - Sebok states, "What the defendants want, and what Wall Street is hoping to see, is a complete repudiation of the state's public nuisance theory." He argues that is not likely to happen but is "certain that the defendants will win some kind of reversal of the trial verdict, which if left standing, could result in an injunction requiring them to pay billions of dollars."
In this second article, he first of all evaluates the performance of both defense attorney John MacFayden, representing NL Industries, and plaintiff attorney from Motley Rice Fidelma Fitzpatrick. He concludes both made "a mess of the law [public nuisance] they were supposed to clarify."
MacFayden, contends Sebok, had the job of convincing the Court that "a private law claim against the lead paint industry had to be based in tort, not public nuisance. If he had achieved this, the Attorney General's standing in bringing this case would take a big hit. And RI has a statue of repose for product liability claims. In addition, the law of causation in RI for product liability would probably deep-six a tort suit.
The screw-up, as Sebok interprets it, is that MacFayden added a fourth element [we know too well the other three] to the traditional legal way of defining a public nuisance in RI. That was derived from "Rose v. Standard Oil Co" which was not a public nuisance case. MacFayden contended that the fourth element was "the activity must be the result of 'intentionally and knowing conduct, (or) negligence where knowledge cannot be proven, or, if the conduct is ultrahazardous (something which cannot be proven in this case) liability is absolute.'"
Sebok also views MacFayden's arguments about the seminal "Wood" [the pollution nuisance] case as equally confusing and unhelpful.
As for Fitzpatrick, her key strategic error, says Sebok, "is that she kept insisting that the lead paint suit was nothing special. [Then why was the world watching?] She kept describing the application of the common law of public nuisance in this case as a matter of applying 'black letter law.' She called this suit a 'standard case' of public nuisance." In addition she hammered that "Wood" was very similar to the lead paint case. Even laypeople realize that a pile-on of pollution is lots different than lead paint on walls.
Where this leaves the four Justices of the RI SC, argues Sebok, is to decide whether the lead paint case falls into the law of tort. The result would be to dismiss. This is not an easy call, though. For instance, there was a Wisconsin Supreme Court 1999 decision in "Peace v. Northwestern National Insurance Co." that lead paint chips, flakes and dust constituted pollution. The dissenters disagreed and a number of other state courts have sided with them.
My take? Common sense seems to say: If the case looks like a tort, walks like a tort, and smells like a tort, maybe it should be treated according to tort law.
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