Maybe the LESS Database arguments won't be a slam-dunk for a new trial, as I had thought. But, on the other hand, maybe they will be. I'm not a lawyer. All I know is what I picked up in this morning's session in the 2nd day of hearings about the defense's motions in the Rhode Island (RI) lead paint trial. The session was completely devoted to the issue of whether Rule 60B can be applied regarding the 621 number.
Paul Michael Pohl, representing Sherwin-Williams, Scott Smith, representing Millennium Holdings, and Fidelma Fitzpatrick, representing that state, went at it. The gloves were off. In all the times I had observed Fitzpatrick in court, this was probably her best presentation of self and of the legal issues. Pohl and Smith were also strong.
The two defense attorneys argued that Rule 60B should be applied and a new trial permitted. Essentially Rule 60B ignores intentionality. It can be invoked whenever the data introduced during a trial was materially different from the actual data. It's irrelevant if the oversight was planned or innocent.
Among the case law presented by both was the recent Merck verdict which was overturned because of undisclosed evidence. Pohl also reiterated "why [the 621 number] was such a big deal at trial."
Some of that is familiar to us: The jury was led to believe that a plateau had been reached in RI in preventing new cases of lead poisoning among children under 6 and extraordinary measures had to be taken. The verdict form had question 1 about if there was a public nuisance in RI and question 3 about the need to abate the public nuisance. Smith hammered how much out-of-date numbers might have influenced the jury to answer questions 1 and 3 in the affirmative.
A new twist was the introduction of the national market share piece. The defense contended that the state used national market share numbers to imply what the defendants might have been up to in RI. At the same time, the defense contended, the state also used the national numbers which Dr. Shannon supplied about a plateau in lead-poisoning prevention to support the implication that there was also a plateau in RI. Smith pointed out the state can't have it both ways.
Of course, both highlighted the "magnitude" of the Rule 60B matter. As well they should. Billions in possible abatement money are riding on the defense's ability to get a new trial. However, legal experts inform me that if the defense can't get a trial, there are other ways to seek a remedy to the verdict. Those include going all the way to the U.S. Supreme Court, which is possible but not probably.
Fitzpatrick used every trial-lawyer tool available, ranging from carefully-cited details from official court documents to impassioned rhetoric. Essentially her argument was that the defense was aware that there was no plateau and they chose not to present this information during the trial. Fitzpatrick was shrewd to remind the court, yet again, that the defense had chosen to rest its case and not call witnesses.
How the defense knew this, might have known this, or could have known this, contended Fitzpatrick, was through depositions with Philip O'Dowd and Dr. Simon (M.D.). In those depositions there were indications that maybe the numbers available on new cases of elevated levels of lead in the blood in RI should not be relied on. The depositions also dealt with the matter of how new cases were being counted by the RI Department of Health. If there was going to be a change in how new cases were determined, then the defense had to anticipate that the numbers could change radically.
A major issue embedded here was that statistics on new cases have to viewed on an annual basis. The statistics available only pertained to the first three quarters of 2005. The defense, Fitzpatrick stated, should have followed this up in order to get a more accurate read on in what directions the numbers were moving or not moving.
In addition, while Fitzpatrick admitted that the state refused to turn over new data to the defense (the so-called smoking gun since it contained 4th quarter numbers), the defense could have filed a motion to attempt to get them by appealing to the court. Again, the implication here was that the defense wasn't pushing back hard enough, as when it passed up the opportunity to present its case.
The elephant in the court room, of course, was the issue of the defense's not calling witnesses. Fitzpatrick would sometimes make this explicit by opining that the defense lost its chance to present its evidence and point of view and now it's using RI Rules 50/59 and the LESS Database as a way of getting a second shot at this. When law journals start deconstructing the RI lead paint saga, the defense's not calling witnesses in RI lead paint II will be endlessly discussed.
Fitzpatrick also got appropriately worked up about the defense's contention that the state had "mislead" the jury. Fitzpatrick reframed the issue as one of the defense's failure to file a motion to get the fourth-quarter data. Interestingly, Judge Michael Silverstein explicitly said, "The state did not mislead."
A transcipt of the LESS Database hearing from July 12, 2006 is available at no charge from mgenova981@aol.com.
Judge Silverstein recessed court for lunch with the hope that the rest of the defense's issues could be wrapped up today.