Some of us might have concluded that our expertise in lead paint issues was yesterday and we better move on. That's exactly what I did. Since Rhode Island Superior Court Judge Michael Silverstein okayed reimbursing the defendants for certain co-examiners report expenses, I have shifted my attention to the career implications of the law-industry downturn.
So, you can imagine the shock of finding that for the past week the lion's share of the traffic on this blogs and the links have been related directly to lead paint matters. I've thought about this. And here are some of the key reasons lead paint issues are front-burner again:
- California Supreme Court review of contingency in the Santa Clara lead paint public nuisance case is becoming real. The defendants submitted their reply to the plaintiffs. Here is the brief ragarding Sherwin-Williams Download SW-SantaClara--ReplyBriefontheMerits. The two drivers here are the concern about the impact of an influential court like the CA SC ruling to allow or not allow contingency to be used with government entities. If it's okayed, then Pandora's box is thrown open for state attorneys general to pursue class action suits. The other driver is the possibility that if contingency is allowed and the lawsuit moves forward, then there could be similar lawsuits throughout CA. Remember the state is on its economic knees. Lead paint money could seem like manna from heaven. Will those lead suits resume across the nation? I doubt it. But CA is a big state with many municipalities which could sue.
- "State of North Carolina v. TVA" resurrected the public nuisance novel legal theory. No the plaintiff win wasn't in the context of product liability, as Jones Day partner Chuck Moellenberg pointed out this blog. But public nuisance could be the legal weapon of choice for environmentalists, complaints about coal-fired plants and sundry other missions. No, public nuisance isn't over. Far from it.
- In RI, the lead paint defendants approached the judge again about reimbursement of certain administrative costs. This time the stakes were much higher. The first request, which was granted, involved $240,000. Now we're talking millions. If the judge approves, then what entity will pay? RI is in a deep financial hole. So, eyes turn to the contract between the plaintiff and contingency private counsel Motley Rice. Depending on the interpretation of the wording of that contract, Motley Rice could be accountable for those millions of dollars. You bet, this is being closely watched by everyone from plaintiff attorneys taking on contingency arrangements to experts in contract law.
- The outrage about the Consumer Products Safety Act [CPSIA] - see Overlawyered.com - regulations of children's products containing lead and other toxic materials. That has stirred up a revolution. Participants range from the retail industry to tort reformers. Since well-connected blogger Walter Olson of the Manhattan Institute is in the front lines with verbal torches and bayonets, the issue has been getting non-stop media attention.
- In the Wisconsin Supreme Court is pending a ruling on an individual personal injury lead paint case. If that is allowed to go to trial, there could be a number of others also going to trial in WI.
- The growing power of state government, including state legislatures and state attorneys general, has made the whole lead paint enchilada a case study to learn from. The defendants not only won in RI. They won in other state supreme courts. NL won its own lead paint public nuisance trial in Milwaukee. Recent US SC rulings weakening federal preemption have made business and its lawyers very alert to what I see as the return of states rights.
So, legally, financially, and politically, lead paint remains a seminal matter and one business, the legal community, and lobbyists can continue learning from.