That $240,000 which Rhode Island Superior Court Michael Silverstein ruled had to be reimbursed to the defendants in the RI lead paint trial is small potatoes. That covers administrative costs incurred during the Abatement Co-Examiners Report.
The real money that those defendants, including Sherwin-Williams, want to be compensated for is those millions spent over nine years of litigation for sundry processing expenses such as transcripts and copying fees. A lot was processed. As Associated Press writer Eric Tucker reports, the time has now come for the judge to "decide whether the state must reimburse the companies for the money they spent defending a lawsuit that accused them of making and selling a toxic product." Last July the RI Supreme Court overturned the verdict against the defendants Download Statev.LeadIndustriesAssoc.,Inc.
Of course, this push for reimbursement is a powerful deterrent. Those considering this sort of lawsuit will now consider the double risk: Not only could they lose, they could wind up compensating the defendants for millions of dollars.
But the issue that lead paint watchers are most interested in is: Will the state of RI, as plaintiff, or will private law firm Motley Rice, as contingency attorney, wind up paying this money? The state of RI, notes Tucker, "faces a roughly $360 million budget deficit for the fiscal year ending in June, which means there could be little money to spare for reimbursement."
So, eyes - gleefully - turn to Motley Rice. In the contract between the state of RI and Motley Rice, the latter agreed to bear "all costs and expenses of prosecuting" that litigation. In exchange, the firm could receive about 17 percent of what money the plaintiff recovered if it won the case. Motley Rice, through its attorney Jack McConnell, says Tucker, contends "We certainly never offered, intended or agreed to pay defense costs in the case."
Will Defendant Reimbursement 2.0, if the judge approves this second round, boil down to duking it out about contract law? Those supporting the defendants have been going over the contract Motley Rice signed with a fine-tooth cone. No surprise, contract law is one of the first things 1Ls learn in in law school.