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.”

From the National Association of Manufacturers:

NAM CALLS RHODE ISLAND SUPREME COURT LEAD PAINT REVERSAL A VICTORY FOR MANUFACTURERS AND CONSUMERS

Landmark Ruling Is a Big Loss for Public Nuisance Claims

WASHINGTON, D.C., July 1, 2008 – The National Association of Manufacturers (NAM) applauded today’s decision by the Rhode Island Supreme Court to overturn the trial court verdict against lead paint manufacturers.

“The court essentially shut down the use of product-based nuisance claims in Rhode Island,” said NAM President and CEO John Engler. “Today’s verdict preserves predictability and logic within our civil courts and is a victory for manufacturers and consumers. The Court’s decision is similar to decisions by Supreme Courts in Missouri, New Jersey and Illinois and adds to the momentum toward rejecting product-based public nuisance claims,” he said.

“This decision is a testament to applying the rule of law. We would welcome more state and federal judiciaries to follow the lead of these courts in the ever-growing efforts to expand the limits of liability,” he continued.

“The court clearly understands the risks posed when public nuisance claims are used to displace traditional causes of action, such as product liability lawsuits or thoughtful public policy decisions. Today’s decision is a big win for anyone who is concerned with the growing misuse of public nuisance lawsuits. The NAM will continue to actively oppose the distortion of public nuisance theory in other venues and with other products,” Engler concluded.

The NAM filed an amicus brief in this case and noted the court’s statement that it found all amicus briefs helpful in reaching its decision.

From LeadLawsuits.com, a website sponsored by the companies involved in the lead paint litigation, a statement.

“Today’s ruling is a landmark victory for common sense and for responsible companies that did the right thing,” said Charles H. Moellenberg, Jr., an attorney for The Sherwin-Williams Company, speaking on behalf of defendants Sherwin-Williams and Millennium Holdings, Inc. “This case never should have been filed – it was factually wrong and legally flawed. A company should not be held liable when there is no proof that it did anything wrong. It has taken nine years and two juries, but the Supreme Court’s decision today puts public nuisance law in Rhode Island squarely in line with the overwhelming majority of jurisdictions of the United States.”

From our Legal Beagle search engine:

On January 30, the NAM and other business groups filed an amicus brief urging the Rhode Island Supreme Court to reverse the verdict because the trial court improperly rewrote the law of public nuisance. Our brief argues that public nuisance law should never be used to replace product liability law. Traditional standards of public nuisance law require that there be an injury to a common public right, that there must be some conduct by the defendants that created a public nuisance, and not merely injury, and that the defendants must have some control over the nuisance, both for imposing liability and for providing a remedy of abatement. The lower court also ignored the need to show proximate cause between a particular manufacturer’s actions and an injury.

Allowing this suit would create unpredictable liability for manufacturers in situtations where they have no control over the ultimate use and/or maintenance of their products,a nd constitutes regulation by litigation. The NAM has been very active in opposing the attempted expansion of the public nuisance theory of liability by plaintiffs’ lawyers who are attempting to avoid the straightforward requirements of product liability law. Similar cases have been brought against manufacturers of firearms, cigarettes, automobiles, gasoline additives, chemicals and electricity. Many of these have been rejected.

Related Documents:
NAM brief (1/30/2008)
Press release (1/30/2008)

The other amici were the Coalition for Litigation Justice, Inc., the National Federation of Independent Business Legal Foundation, the American Chemistry Council, the American Insurance Association, National Association of Mutual Insurance Companies, and American Tort Reform Association.

The Rhode Island Supreme Court today handed down an important ruling that should discourage government officials from abusing public-nuisance statutes by stretching them into all-purpose legal weapons against whomever happens to be the target of the moment.

The court ruled unananimously in State of Rhode Island v. Lead Industries Association, Inc., et al., overturning the 2006 jury verdict that punished paint manufacturers (NL Industries, Inc., The Sherwin-Williams Co., and Millennium Holdings LLC) for violating the state’s public nuisance laws. State Attorney General Sheldon Whitehouse, now a Democratic U.S. Senator, brought the suit in 1999 and after a complicated legal process, the jury found the companies found responsible for lead paint contamination in Rhode Island homes and buildings.

We would summarize the AG’s argument this way: Some Rhode Island structures have lead paint in them, lead paint is dangerous, and even though the state can’t prove these manufacturers had anything to do with specific incidents of lead paint exposure, they’re kind of generally at fault, really. Or at least they should be. And so these bad actors should pay up for creating a public nuisance. How much? Attorney General Patrick Lynch outlined a $2.4 billion remediation plan last year to be paid for by manufacturers.

The court’s tough opinion rejects those arguments:

[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.

In reaching this conclusion, we do not mean to minimize the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning. Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law. As set forth more thoroughly herein, defendants were not in control of any lead pigment at the time the lead caused harm to children in Rhode Island, making defendants unable to abate the alleged nuisance, the standard remedy in a public nuisance action. Furthermore, the General Assembly has recognized defendants’ lack of control and inability to abate the alleged nuisance because it has placed the burden on landlords and property owners to make their properties leadsafe. 

Key links:

• 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