Law And More

Lead Paint Watchers - What We Still Have to Watch

Legal experts say that as a case, Rhode Island lead paint public nuisance is a done deal.  The plaintiff can't take in anywhere else since to the experts there don't seem to be any federal questions involved.  So, what's left for us lead paint watchers to watch?  Actually, plenty.  Here are some of the pending matters:

• Monitor the research by the defense legal teams for Sherwin-Williams, NL Industries, and Millennium Holdings about if they, by law, have the right to demand reimbursement for legal fees from the plaintiff since the case should never have gone to trial.  That's nine years of legal fees.  If the answer is yes, then we have to watch that the money is paid to them.  Along these lines, will there be shareholder suits by the stock owners in the defendants' companies against the state of RI for the hit to the value of their stocks?

• Monitor the coming oral arguments in the Wisconsin Supreme Court in an appeal from the plaintiff in a personal injury case.  The ruling on this is important because Peter Earle, who represents the plaintiff, also has about 15 other personal injury cases in the hopper. As we know by "Thomas," WI can be a tricky state to argue a case in.  But, both lead paint cases, personal injury and public nuisance, were won by the defense. With the election of Gabelman to the WI SC, the court is looking mighty conservative.

• Monitor personal injury case in Mississippi against Sherwin-Williams. The plaintiff postponed it until the next year.  Personal injury cases can be pretty expensive to the defendant, as we witnessed in those verdicts against landlords that went into millions.

• Monitor if the pending public nuisance suits in Ohio, one statewide, one in Columbus, will be dropped by plaintiffs.

• Monitor the status of the request by the defendants in the Santa Clara, California lead paint public nuisance case to that state's Supreme Court to review the contingency ruling by the appeals court.  Like the RI SC, the appeals court had ruled that contingency arrangements are valid in certain circumstances and should be decided on a case-by-case basis.  If contingency ruling is not reviewed by the CA SC or is allowed after review, it's likely that the pending public nuisance case in Santa Clara will move forward.  Those representing the plaintiff requested briefs from me related to the RI litigation.  The issue is: If litigation happens in Santa Clara, will it spread to other parts of CA, a liberal state.  Recall that the CA SC recently allowed gay marriages to be legal.

• Monitor if new personal injury cases are filed.

• Monitor if new public nuisance cases are filed.

In addition, since we lead paint watchers witnessed history-in-the-making we have to determine for ourselves and perhaps for outside audiences how this litigation might have changed us - and the world.  Regarding external audiences, think documentaries a la Michael Moore, a movie about Motley Rice and the paint companies, a JFK Profile in Courage type salute for the RI Supreme Court Justices, a public policy book on the issue of public nuisance, and baseball hats with the logo No More RIs.

Lead Paint Watchers - We are in The Top 100 Law Blogs

Lead paint watchers, as a community, we did it.

Together, by pooling our gossip, insider info, thoughts, feelings, and comments we got to be one of The Top 100 Law Blogs.  Here's the group that honored us in that way.  It's the Criminal Justice Degrees Guide folks.  And it's Fiona King who notified us that we were in. Since then, the AMERICAN BAR ASSOCIATION LAW JOURNAL has been giving us a lot of exposure on this.

Thank you Lead Paint Watchers and Fiona King [Fionaking75@gmail.com].

Tone-Deaf - RI AG Lynch's statement gets derisive reception

The response to Rhode Island Attorney General Patrick Lynch's statement post-RI Supreme Court lead paint ruling has been negative, even derisive.  The tone was wrong, seemingly verging on King Lear-like self-pity that we found in the public published statements of Bill Lerach and Conrad Black.

Our Inside the Beltway Attorney and Faithful Lead Paint Watcher observes that in his media statement, Lynch provides "nary a mention of his duty to enforce existing RI laws to ensure the health of the same kids that he supposedly was crusading for."

In this era of extreme media savvy, citizen journalism and a 24/7 news cycle, tone-deafness sinks careers.  

All the King's Men & Even the King Couldn't Save the Kid

According to sources, once it was obvious he was in real trouble, his modus operandi was to do what was necessary to save the kid, that is, his son Zach.  If the kid got ground up in the federal meat grinder, Dickie's wife would suffer terribly.  Like all Southern boys, Dickie has a code of honor to protect the women and children.

Well, all the king's men and even the king couldn't save the kid.  Dickie watchers were predicting the kid would get probation.  Didn't happen. Judge Neal Biggers imposed a 14-month sentence on Zach and a $250,000 fine.  At the end, Dickie failed his family - and the values he was reared with.

RI Lead Paint - The Morning After & Sweet Irony

In the bible for the digital age - "The Cluetrain Manifesto" - Doc Searls et al. claim this is the era of irony.  Maybe that's the only tone that helps us understand the chaos of change.  In the Chapter "Post-Apocalypso," the first sentence reads, "Irony is perhaps the most common mode of internet communications.  The Net didn't create the mentality, but it did come along just in time to give it new expression."

Therefore, it's no newsflash that lead paint watchers this morning after have nothing to say but what's ironic. We're more philosophical, in an ironic or distancing manner, than celebratory.  Let's look at some of the comemnts coming in.

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Ohio resident, off the record:

"Why did this happen and will it happen again?  Probably.  Would it help to print up baseball hats with the logo: No More RIs?"

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Wall Street guru, who also owns Sherwin-Williams' stock, off the record:

"We have to create our own sense of justice out of all this.  So, yeah, I'm all for the defendants Sherwin-Williams, NL Industries and Millennium Holdings going after Rhode Island for the legal expenses. If nothing else they should get those.  But the loss in value of the stock to retirees, employees, little old ladies and mutual funds was enormous if they sold the stock on the belief that the company was going to be taken for a loss because of this suit.  Seems to me that everyone knew this case was unwarrented as a matter of law.

I'm not an attorney but I've been around the block enough to smell liability surrounding the RI Attorney General."

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Recently retired Midwest attorney, off the record:

"First of all, I believe there will be less focus on lead paint lawsuits as the defendants have now developed a strong competency in defending these suits. Like they say, 'If it does not kill you, it makes you stronger.'

"Just imagine how much good could have come to communities if the resources poured into this trial would have been invested elsewhere.  I believe that the Rhode Island Supreme Court definitely got it right but I am saddened as the reality is that everyone is wounded from this trial.

"Least wounded is Ron Motley, but he probably is actually the most upset due to who he seems to be.  His motivations are his motivations and I can believe that he really believes that his firm is actually working for the greater good.  I perceive that the firm's brand has been damaged. Their prospective clients may note that, yes, the firm fights for them but that the quality of their legal help may be deficient. 

"Finally, this was hardly a win for the defendants.  Millions were spent seeking justice.  How much of that the defendants get back and when?  Good luck."

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Long Island writer off the record:

"There's a book in this.  A very dark comedy."

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Ironic observations welcome.  Please leave a comment or contact Mgenova981@aol.com.

"Now that the euphoria has worn off for the RI lead paint defendants," Midwest Brandname Attorney Reflects

A dedicated lead paint watcher even though he's not involved in the litigation, this brandname Midwest attorney has anticipated that eventually the high following the Rhode Island Supreme Court decision could turn to a sadder state.  This attorney reflects:

"Once the elation of the Rhode Island Supreme Court victory wears off for the defendants Sherwin-Williams, NL Industries and Millennium Holdings, I'll bet they start to feel some serious frustration.

"They - or their insurers - must have spent tens of millions of dollars defending these cases.  They have experienced years of undeserved pressure on their businesses and their stock prices.

"What do they get, in the end? A decision stating that the case should have been thrown out at the very beginning, back when the complaint was first filed. [Here is a copy of that decision Download statev.LeadIndustriesAssoc.,Inc..pdf] Before any discovery.  Before any trial. Essentially, an in as kindly a tone as it could muster, the Rhode Island Supreme Court said that the trial judge should have thrown this lawsuit out as soon as he saw it.

"The lawsuit illustrates well why companies often settle cases with no merit - because they can be made to spend millions, and suffer collateral damage to their stock prices, while the determination of their innocence is delayed. And once they win, they can't get back all of that money or undo the suffering.

"The suit also shows why the only correct decision is to fight these cases on the merits.  Companies that settle meritless lawsuits provide a revenue stream for plaintiff lawyers who, being smart and entrepreneurial, keep coming back for more.  Money paid to 'buy peace' winds up funding a war.

"For corporate defendants, the only lasting peace is won through justice.  As we have all seen, the pursuit of justice requires a lot of guts, patience, and money.

"A toast to vindicated defendantst Sherwin-Williams, NL Industries, ARCO, and Millennium. You did it right."

NPCA Thomas Graves Highlights Facts-Deficit in RI Lead Paint Case

It was Thomas Graves, Vice President and General Counsel of the National Paint and Coatings Association, who gave the Rhode Island Supreme Court that narrow passageway via "Wood."  In the NPCA amicus brief Graves pointed out how the trial court had misinterpreted or misunderstood "Wood," a pollution case.  And, sure enough "Wood" came up during oral arguments on May 15th.  Here is a copy of the NPCA key amicus arguments Download RIamicusbrief.doc

Today, in his statement about the RI SC ruling overturning the lead paint public nuisance verdict against the defendants Sherwin-Williams, NL Industries, and Millennium Holdings, Graves focuses on the lack of facts in that whole enchilada.  He quotes what RI SC Chief Justice Frank J. Williams wrote in the Court's opinion:

"We conclude that the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children."   Here is the copy of that entire RI SC opinion Download statev.LeadIndustriesAssoc.,Inc..pdf

Graves also states, "The attempt by plaintiffs' attorneys and state legal officers to stretch public nuicance theory far beyond its normal applications to avoid statues of limitations and other requisite legal boundaries has now been summarily rebuked by the Rhode Island Supreme Court."  Here you can read NPCA's opinion in full Download RhodeIslandSupCourtverdict2008.doc

 

 

 

 

RI SC Decision - "Loser Pays" Could Provide Monster Deterrent to State AGs

Probably as big as the Rhode Island Supreme Court ruling to overturn the lead paint verdict is, perhaps bigger might be the defendants' possible push to have legal expenses reimbursed.  In essence, this represents a version of the traditonal "Loser Pays" in the legal systems in Europe and the United Kingdom.  In those nations that provision discourages anyone or any group but the most committed plaintiff. There as here legal services aren't cheap. This American-style model of "Loser Pays" could have a profound impact on the U.S. system of justice.  In itself, it could make tort reform a done deal.

In LEGAL NEWSLINE, John O'Brien reported on how the defense lawyers are currently researching if they have the right to be reimbursed for the legal costs. O'Brien quotes Jones Day attorney Chuck Moellenberg, Jr., who represents Sherwin-WIlliams in the lead paint lawsuits, as noting, "This litigation has gone on for a long time and, as the Supreme Court said today, it was unwarranted as a matter of law." You can read the RI SC's opinion here Download statev.LeadIndustriesAssoc.,Inc..pdf

This second chapter of the lead paint public nuisance litigation story could be more riveting to those who study our legal system than that whole ball of wax called "public nuisance."  Even the threat of a "Loser Pays" scenario in this multi-million-dollar nine-years of litigation could be sending a chill throughout the states, including Ohio and California where there are pending lead paint public nuisance lawsuits.

RI SC Ruling - Attorney General Patrick Lynch comments on decision

Today, as most of us know, in an unanimous verdict the Rhode Island Supreme Court overturned the verdict against lead paint defendents Sherwin-Williams, NL Industries, and Millennium Holdings.  Here is a copy of that decision Download statev.LeadIndustriesAssoc.,Inc..pdf.

In response to that ruling, the RI Attorney General Patrick C. Lynch issued this formal press statement. Here it is:

"Today's decision affects every Rhode Islander, every taxpayer, every parent and, especially, every child - who has been injured, is still threatened with injury today, or will be poisoned by lead in the future.  This reversal is enormously disappointing, and I disagree with it in the strongest terms.

"Our fight has always been about standing up for our citizens.  Standing up for our children.  Standing up for taxpayers.  Standing up for public health.  Each day that's what we do.  Never in more challenging circumstances.

"This case was litigated in the Superior Court for more than eight years.  Despite the multi-million dollar lead industry-funded defense waged by an army of more than 100 lawyers, my office proved to the satisfaction of an unanimous jury that the three defendants were liable for the public nuisance that their products created in Rhode Island.  Those products poisoned our infants and children - and continue to poison our infants and children - while bringing great profits to the companies that made and sold them.  Today, the Supreme Court ruled that these defendants do not have to clean up the mess they have made. I find this legally and fundamentally wrong.  As important, I find it impossible to explain to the kids who have been and will continue to be lead poisoned, to the parents and families harmed and suffering as a result, and to everyone trying on their own, and at their own expense, to protect our children from these defendants' products.

"I want every resident of Rhode Island to know that this office fought this battle well, and to what appears to be the end.  We dedicated more attorneys, staff, and resources to this case than to any other case in the history of our State.  We met every legal challenge from Corporate America's defense counsel and we survived their every attack to secure victory from a jury of our peers.  I believed then, believe now, and will always believe, that our peers got it right."

This blog wants to thank Michael J. Healey in the Rhode Island Attorney General's Office for providing us with plaintiff briefs during this litigation.  Because of Mr. Healey we had access to both sides of a legal and public policy story that we may never fully understand.  For any questions and concerns, you can reach him at 401-274-4400, ext. 2234 or Mhealey@riag.ri.gov.

RI SC Ruling - 2nd Shoe Could Drop

For years Wall Street experts have been recommending that the Rhode Island lead paint defendants sue the state of Rhode Island for all the legal costs they incurred during the nine years of litigation.  Not too many took that suggestion seriously. 

Now everyone is - including the defendants Sherwin-Williams, NL Industries, and Millennium Holdings which won their appeal of the verdict with the RI Supreme Court.  That High Court over-ruled the jury verdict that the defendants contributed to a public nuisance and were responsible for abatement. Copy of RI SC opinion here Download statev.LeadIndustriesAssoc.,Inc..pdf

As John O'Brien reports in LEGAL NEWSLINE, the defendants are researching the issue of having those legal expenses reimbursed.  O'Brien quotes Jones Day attorney Chuck Moellenberg, who represents Sherwin-Williams in the lead paint litigation, as noting, "This litigation has gone on for a long time and, as the Supreme Court said today, it was unwarranted as a matter of law."  Moellenberg indicates that they will examine the right to recover the cost of litigation.  He concedes, though, that the defendants do not have the right to recover the cost of the losses in the stock price.

What entity would be responsible for the reimbursement?  At the May 15th oral arguments in front of the RI SC on the appeal, plaintiff attorney Neil Kelly, who is a RI Assistant Attorney General, was asked what did the contingency agreement with Motley Rice provide for if the state loses the suit.  Kelly replied that he believed that Motley Rice "assumed the risks of litigation."

What O'Brien does not bring up is what Wall Street experts have also recommended.  And that's for the defendants' shareholders to sue the state of RI for the hit to the value of their stock. I predict that class-action suits will come from that corner, in addition to the direct defendants' possible push for reimbursement of legal costs.