In the ongoing saga of the Rhode Island lead paint public nuisance litigation, the defendants won a new legal victory as well as a public relations one.
Today, RI Superior Court Judge Michael Silverstein ruled that defendants Sherwin-Williams, NL Industries, and Millennium Holdings will be reimbursed for the costs and expenses associated with the Co-Examiners. That means that the plaintiff's - that is the state of RI's - contention of sovereign immunity didn't cut it. Judge Silverstein agreed with the defendants, whose motion was argued in person last August primarily by Jones Day attorney Laura Ellsworth, that since the state was the plaintiff it had no claim to sovereign immunity.
In the ruling, Judge Silverstein states:
"After due consideration, the arguments advanced by counsel at oral argument and in their memoranda, the Court has determined that the State shall be responsible for reimbursement of all costs and expenses associated with the Co-Examiners. Pursuant to 13(a) of the June 18, 2007 Order, the Court reserved the right to modify it [sic] original allocation of Co-Examiner expenses. Here, where the Rhode Island Supreme Court has overturned the jury verdict against the Defendants and vacated the judgment of abatement, it would be inappropriate to continue holding the Defendants liable for any portion of the Co-Examiner expenses.
"Prevailing counsel may present an order consistent herewith which shall be settled after due notice to counsel of record."
Here is a copy of that January 22, 2009 ruling Download DOC.
Here also is a copy of the July 1, 2008 ruling by the RI Supreme Court overturning the February 22, 2006 verdict against the defendants Download Statev.LeadIndustriesAssoc.,Inc.
On the public relations front, the message being delivered by the lead paint defendants is unambiguous: We will recover the costs and expenses of all litigation. The odds of the defendants's winning public nuisance lawsuits have been in their favor. Not only were they victorious in Rhode Island but also in Milwaukee, Wisconsin. In the latter, NL Industries was sued. It won both with the jury and on appeal.
As lawyers not associated with the litigation observed during the August arguments about reimbursement: If the defendants emerge victorious from this last lap of the litigation, a powerful deterrent is in-place for plaintiffs's filing future lawsuits against these defendants.
Bad news for the RI plaintiff. This motion represented only the first of several that will likely be filed by the defendants to recover other costs and expenses associated with the nine years of litigation. Surely, this will not sit well with the taxpayers of the state.