From the AP, Milwaukee, “Milwaukee loses appeal in lead paint lawsuit“:

An appeals court on Tuesday rejected the city of Milwaukee’s bid to force a former lead paint manufacturer to pay for the cleanup of 11,000 contaminated properties.

The District 1 Court of Appeals ruled 2-1 the evidence was sufficient to uphold a jury’s ruling that NL Industries Inc. does not have to pay the city costs of cleaning up the inner-city homes. The city sought $52.6 million for the program, which spanned 1992 to 2006 and involved replacing old windows.

The Milwaukee County jury ruled last year the widespread presence of lead paint in Milwaukee homes was a public nuisance, but NL Industries did not “intentionally and unreasonably engage in conduct” that caused it and was not negligent.

The Rhode Island Supreme Court in July rejected the legal and factual grounds on which the state Attorney General sued paint manufacturers, and recognizing its losing case, the city of Columbus, Ohio, soon after dropped its litigation. We may be near the end of these “innovative” efforts by ambitious politicians, who sought to twist public nuisance laws so they could shake down third parties with no demonstrable link to lead contamination. For more, see Leadlawsuits.com, put together by the sued-against manufacturers.

The state of Ohio still has a public nuisance suit against the paint manufacturers pending, one filed by the since disgraced and now-resigned attorney general, Marc Dann; interim AG Nancy Rogers kept it alive. A new AG takes office soon, Richard Cordray, and he’s in a good position to say enough is enough, let’s stop wasting state resources on litigation we are bound to lose.

The city of Columbus, Ohio, has voluntarily ended its litigation against paint manufacturers, seeing no expectation of success after the Rhode Island Supreme Court unanimously rejected the state’s public nuisance lawsuit against the companies.

From a news release:

The City of Columbus followed settled law by asking the court to dismiss its lawsuit,” said Charles H. Moellenberg, Jr., an attorney for The Sherwin-Williams Company, speaking on behalf of defendants Sherwin-Williams and Millennium Holdings, LLC. “The lawsuit was legally and factually wrong in suing companies that lawfully made products that the city, painters and consumers demanded historically as the best on the market.”

The notice of voluntary dismissal is here.

State Supreme Courts in Missouri and New Jersey and a jury in Wisconsin have also rejected public nuisance lawsuits.

“The lawyers who sold Columbus on this lawsuit made much of similar litigation in Rhode Island,” Moellenberg said. “Now, the unanimous ruling by the Rhode Island Supreme Court last week that dismissed the Rhode Island case has confirmed that public nuisance lawsuits are ill-advised and without merit. Extraordinary progress has been made in addressing lead risks to children from all sources. Enforcement of current Ohio law requiring property owners to keep their properties in a safe condition and free of hazards will finish the job.”

• Columbus Dispatch: “Columbus drops lawsuit against lead-paint makers“
• Associated Press: “Columbus drops lead paint lawsuit“
• Public Nuisance Fairness Coalition, news release.
• Jane Genova, Law and More blog, commentary here and here.
• The Ohio Attorney General’s office continues to whistle past the courthouse as spokesman Jim Gravelle says the state will continue its own public nuisance suit. It would be nice if Attorney General Nancy Rogers would explain more thoroughly to the public (via the media) how she could conceivably expect the state to prevail.

From Stuart Taylor, National Journal, Feb. 19, 2003, “Perverting the Legal System: The Lead-Paint Rip-Off.”

[Attorney General Sheldon] Whitehouse signed an unusual “retainer agreement” with Ness Motley and another firm. It not only guaranteed the lawyers a contingent fee of 16.67 percent of any money recovered, plus all litigation expenses; it also gave them considerable control over whom to sue, what to claim, whether to settle, and on what terms. In other words, Whitehouse delegated a share of the state’s sovereign power to a law firm whose best-known partner, Ronald L. Motley, had vowed that he would bring the paint industry to its knees within three years or give up his 156-foot yacht.

And here’s the Themis, docked at Hilton Head, April 15th, 2008 (Recorded by the blogger dlauderdale at the Island Packet online.)

Mr. Motley’s yacht was ranked No. 99 in the America’s top 100 largest yachts, 2007, from Power and Motoryacht magazine. The shipbuilder, Trinity Yachts, has a wonderful site devoted to the vessel, with lovely photos.

For more on the R.I. Supreme Court’s ruling on contingency fee arrangements between the state and private attorneys — they’re OK, but watch out! — see this post at PointofLaw.com.

Last week amid all the postings on the Rhode Island Supreme Court’s ruling that rejected the state’s lawsuit against paint manufacturers, we noted the similarity of comments from Attorney General Patrick Lynch, former AG and now U.S. Senator Sheldon Whitehouse, and the contingency fee attorneys at Motley Rice who manned the legal assault (and campaign contributions): They were all acting “for the children.”

Now we see that Attorney General Lynch last month was elected to be chairman of the National Association of Attorneys General, or NAAG. (The old joke in state political circles is that NAAG stands for National Association of Aspiring Governors.)

Anyway, in the news release announcing his election, Lynch declared his goals for the year:

“I am enlisting the assistance of my colleagues and good corporate citizens, and marshalling the resources of NAAG and other organizations, to increase protections, decrease risks, and encourage a more just and secure world for our children,” Attorney General Lynch said. “Technology has created a borders-free, global society that is advantageous in many respects. But it also exposes our children to potentially dangerous influences and information, and makes them more vulnerable to those who seek to exploit, victimize, and harm them. We will continue our work in fostering a safer social networking environment and in preventing predators and other criminals from using cyberspace as their own personal playgrounds.”

Would it be too much to ask for enforcement of the law to create a more just and secure world for everybody, adults, too?

P.S. The Providence Journal prints a letter from Darren McKinney, communications director for the American Tort Reform Association, entitled, “Lynch, Whitehouse hurt R.I. economy.” Excerpt:

Lead-paint “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,” Lynch said in disagreeing with the court. Yet the defendant companies had voluntarily ended sales of such products in 1955, long before 1978 government regulations required them to. Thus a reasonable person might conclude that property owners, not the former makers of then-perfectly legal products should more fairly be asked to shoulder the burden for lead-paint abatement today.

In any case, it’s no surprise that Mr. Lynch’s activist, litigious attitude, like that of his predecessor, Sheldon Whitehouse (now a U.S. senator), has helped keep Rhode Island’s rate of real GDP growth well below the national average while the unemployment rate remains considerably higher.

From The Columbus Dispatch:

The Rhode Island Supreme Court might have put an end to a Columbus lawsuit intended to hold paint manufacturers financially responsible for cleaning up thousands of homes contaminated with lead paint. …[snip]

“Most everybody pinned their hopes on how Rhode Island moved,” said Columbus City Attorney Richard C. Pfeiffer Jr. “I think it’s fair to say, with Rhode Island’s decision, we’ll have to seriously re-evaluate this case and see if it should continue.”

The city estimates that cleaning up 150,000 lead- contaminated homes could cost $1.7 billion.

“Obviously, this ruling in Rhode Island does not bode well for our legal strategy,” said Dan Williamson, spokesman for Mayor Michael B. Coleman.

From the Cleveland Plain Dealer, an editorial, “Rhode Island court rightly absolves companies that made lead-based paint“:

Fairness required the Rhode Island Supreme Court to overturn the landmark lead-paint nuisance verdict against Cleveland-based Sherwin-Williams Co. and two other companies that used to make lead-based house paint.

Chief Justice Frank Williams expressed regret for “the harm to children in Rhode Island,” but went on to say that “the defendants were not in control of any lead pigment at the time the lead caused harm to children.” That wise decision should persuade Ohio and its cities to shelve their public nuisance suits.

That’s the headline on today’s Wall Street Journal editorial marking the Rhode Island Supreme Court’s ruling in the lead paint litigation as a good day for justice.

Below we note the similarity of denunciations coming from R.I. Patrick Lynch and the attorneys as Motley Rice. Shared interests, shared rhetoric…

The lead paint as “nuisance” theory was ginned up by Motley Rice, the South Carolina firm famous for its tobacco shakedowns. The law firm found a partner in then-Rhode Island Attorney General (and now U.S. Democratic Senator) Sheldon Whitehouse, who brought the first lead nuisance suit in the country. The theory was picked up by current AG Patrick Lynch, who has worked hand-in-wallet with Motley Rice and others, dishing them a contingency contract worth 16.67% of any settlement.

Yesterday’s decision should deny them that jackpot injustice. But the cost of fighting these suits over nearly a decade has still been steep for the three paint company defendants. Sherwin-Williams Co. saw its stock plummet after the 2006 verdict, erasing about $1.8 billion in market cap, a third of its value at the time. The British “loser pays” rule is designed to deter precisely this kind of legal abuse by making the loser pay for bringing frivolous cases.

The Journal’s ending paragraph is as clear a statement we’ve seen characterizing the developments in Rhode Island:

Yesterday’s ruling is good news for paint makers and consumers, and even better news as a rebuke to the plaintiffs bar and its political patrons. Industries that make lawful products should not be held hostage to bogus legal theories whose only purpose is looting honest companies.

Rhode Island Attorney General Patrick Lynch responds with bluster and abuse to the state Supreme Court’s 4-0 ruling throwing out his lawsuit against paint manufacturers. From his statement:

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 a 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.

But, then, as the Supreme Court found, the state did not prove the companies made “the mess,” as Lynch puts it. The justice rejected the causal relationship Lynch claimed.

Then there’s Lynch’s use of appeal, “for the children,” as the ultimate good he would substitute for the rule of law. “For the children” has replaced patriotism as the last refuge of the …Well, you know.

It’s the same appeal that Lynch’s contingency-fee attorneys at Motley Rice LLC, the people who really ran the show, made in their news release:

We are very disappointed that the Rhode Island Supreme Court chose to ignore the verdict of a jury of Rhode Island citizens and the judgment of a preeminent trial judge in order to absolve the lead paint companies of any responsibility for contaminating thousands of houses in Rhode Island with a poison that has injured tens of thousands of Rhode Island children.

These are political arguments, not legal arguments. But then, it’s politics, not the law, that drives self-promoting attorneys general to file these kind of suits in the first place.

UPDATE (5:20 p.m.): We had missed this Providence Journal story, which includes comments not reported elsewhere. For example, from the office of U.S. Senator Sheldon Whitehouse, who as AG filed the suit:

“There is no doubt that lead paint manufactured by these companies caused grave harm to thousands of Rhode Island children,” Whitehouse said. “It has for years been Rhode Island’s worst public health problem for children.”

Sherwin-Williams stopped producing lead-based paint 50 years ago. On point is this comment from the company’s attorney, Charles Moellenberg: “The Supreme Court went out of its way to make it clear that Rhode Island children are not left without a remedy — their remedy is the property owners.”  

To avoid making a public nuisance of ourselves, here’s a list of today’s posts on the Rhode Island Supreme Court’s opinion on the state’s lead paint lawsuit.

• Twisting Public Nuisance Laws
• Finally, for More on the R.I. Ruling, Go Here
• More on Lead Paint, Almost 800 Years Worth
• Our Thoughts Turn to Cleveland, Leadenly
• The NAM’s Statement on the R.I. Lead Paint Ruling
• Statement from the Defendants in R.I. Lead Case
• The NAM’s Involvement in Rhode Island Decision
• R.I. Court Reins In Abuse of Public Nuisance Laws

And again…

• Case summary from the Rhode Island Supreme Court
• Opinion (.pdf)
• Dow-Jones Newswires: “RI High Court Reverses Ruling Against Paint Cos“
• Reuters: “Rhode Island top court overturns lead paint ruling“
• Providence Journal: “Update: Landmark lead-paint judgment overturned

The Law and More blog, the go-to place for coverage of the long and painful history of the lead-paint litigation. Lots of commentary and insider insight from Jane Genova. We especially liked this observation from one of her regular legal sources:

Inside the Beltway Attorney, off the record:

“The Chief Justice’s quote from learned U.S. Supreme Court Justice Benjamin Cardozo is very telling about the perception of Judge Silverstein’s apparent bent in this protracted case:

“‘The judge … is not to innovate at pleasure.  He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.  He is to draw his inspiration from consecrated principles.  He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.  He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.’

“Now, unburdened with the distraction of this case, Rhode Island can get on with the serious business of reducing its current 651 annual cases of childhood lead poisoning to zero.  That would be the true pursuit of goodness.”

And there’s more at Point of Law.com here and here.

UPDATE (4:08 p.m.): A statement from Karen Harned, executive director of the NFIB Small Business Legal Center:

Today’s decision by the Rhode Island Supreme Court is a major victory for all business owners. The court rejected the attempt of trial lawyers to dramatically expand tort liability for business owners by imposing a new ‘public nuisance’ theory of liability. In this case, trial lawyers were trying to hold paint manufacturers liable for lead paint exposure despite the fact that at the time the lead paint was being made and sold, it was a lawful product. This was a clear attempt by trial lawyers to attack manufacturers for unfortunate consequences far beyond the manufacturers’ control. The Rhode Island Supreme Court rightfully rejected this reasoning and reaffirmed that in order to hold a business liable, there must be at minimum a causal connection between actions taken by a business defendant and the harm caused to the claimants.

UPDATE (5:35 p.m.): Ted Frank has more commentary and links at Overlawyered.com, here. He remarks:  “Attorney General Patrick Lynch is unhappy about the legal setback to his campaign contributors constituents.” Also worth noting: “Existing abatement efforts already required of landlords under Rhode Island law mean that lead paint exposure is at an all-time low in the state–evidence that was excluded at trial.”

City of Cleveland, Mayor’s Office, news release, Jan. 11, 2008, excerpt:

CLEVELAND – Today, Mayor Frank Jackson confronted the foreclosure crisis at its very core; along with his Law Director Robert Triozzi, he announced that the City of Cleveland is seeking damages from some 21 Wall Street companies who financed and cultivated the sub-prime market. The defendants violated the Ohio public nuisance law which is what the City of Cleveland will use to seek damages.

“Cities can rebound, however it is extremely costly to do so given that declining tax revenues are part of the fallout of foreclosures,” said Mayor Jackson.

Public nuisance is a longstanding, well-established legal concept. It allows recovery for circumstances created by the defendant that interfere with the public’s “rights and interests”. The unscrupulous lending practices that are part of the sub-prime market have devastated Cleveland neighborhoods which clearly demonstrate a public nuisance.

Not so well-established after today’s Rhode Island ruling, we’d say.