PROVIDENCE -- The nation's paint companies yesterday unleashed a flurry of legal arguments, and suggested that state workers were illegally shredding documents, as they tried to sidetrack the state's unprecedented lawsuit over damages caused by lead paint.
But by day's end, Superior Court Judge Michael A. Silverstein had swept aside most of the corporate objections and announced the trial would go on as scheduled, starting Sept. 4.
The decision was a big loss for the paint companies. They wanted to delay the trial's start by at least three or four months.
Company lawyers argued that after assembling 2 million documents from state records and deposing 130 witnesses, they needed more time to study all the evidence they had gathered.
Company lawyers also alarmed Silverstein when they reported that staff members at the state Health Department were shredding documents that were subpoenaed for the case.
Silverstein demanded an explanation from state lawyers. After a break, Linn F. Freedman, deputy chief of the attorney general's civil division, responded that only confidential patient information had been shredded. The company lawyers dropped the matter.
Atty. Gen. Sheldon Whitehouse later called the shredding allegation "a bit of a stunt" by company lawyers who were trying to sway the judge.
Whitehouse said he was pleased that Silverstein agreed to keep to the Sept. 4 trial schedule.
"Obviously, we were concerned about any delays because of the public-health consequences," Whitehouse said. "At this point, we have an average of 2,000 kids a year getting poisoned in Rhode Island, so every 90 days, that's another 500 kids. That's why we keep pushing to get this resolved quickly."
A paint company spokesman said company lawyers weren't surprised by the judge's decisions.
"I understand the judge wants to move forward," said industry spokesman Jack Burkman. "My sense is our side feels very confident. They think the law is on their side."
The judge agreed to let the paint companies depose Whitehouse, saying he had lost his executive privilege by speaking out so much about the lawsuit.
Silverstein also gave the companies permission to depose two of Governor Almond's former chiefs of staff, Edward Morabito and Michael DeBiase.
But he rejected their demands to depose Almond, his current chief of staff, Joseph S. Larisa Jr., and former Gov. Bruce Sundlun.
Freedman argued that Whitehouse should not be deposed because he is the plaintiff in the case and a high-ranking state official who is protected from depositions by state policy.
Paul Michael Pohl, a lawyer for Sherwin Williams, said Whitehouse had testified about the case to a U.S. Senate Committee, done numerous interviews with the media and even made a recent presentation to a group of journalists.
Pohl said Whitehouse is involved in a political campaign (for governor), has admitted in a letter that his case was a long shot and has hired a law firm (Ness Motley) that has talked about filing similar cases across the country.
"We want to rebut the contention that this lawsuit is all based on children's health," Pohl said. "He [Whitehouse] has made himself a witness by his public statements."
When the debate moved on to whether Sundlun could be deposed, Gerald C. DeMaria, a lawyer for SCM-Glidden, argued that the lawsuit is so unusual, allowing a deposition of a former governor would not trigger a spate of such actions.
"This is the only case like it in the country," DeMaria said. "It's unique. Lawyers on the other side said damages could be in the billions of dollars."
Silverstein said there is a policy, but no statute or regulation, that protects high-ranking state officials from depositions.
He said the paint companies hadn't provided any good reasons to deviate from that policy in the cases for Almond, Larisa or Sundlun.
Normally, the attorney general would be protected, he said. But Silverstein said Whitehouse's actions have taken him beyond the "scope of a constitutional officer with respect to this case," so he will allow a limited deposition of the attorney general.
Some legal hurdles to the trial remain.
Lawyers for every defendant said they planned to file motions seeking to have the suit dismissed on technical grounds.
Also, John A. Tarantino, a lawyer for Atlantic Richfield, said he plans to ask the Rhode Island Supreme Court to put the trial on hold.
Tarantino said he plans to appeal a decision Silverstein made last week rejecting the paint companies' demand that Whitehouse personally notify the owners of 330,000 houses in Rhode Island that might have lead paint about the pending lawsuit.
Silverstein ruled that the first phase of the trial is about collective nuisance, not individual properties.
But Tarantino argued that if phase one of the trial determines that lead paint is a public nuisance in Rhode Island, each property owner could be dramatically affected. He said he'll ask the Supreme Court to put the trial on hold until it resolves the dispute.
The defendants are American Cyanimid Co., Atlantic Richfield Co., E.I. duPont deNemours & Co., NL Industries, The O'Brien Corp., SCM-Glidden Inc., ConAgra Grocery Products Company Inc. and The Sherwin-Williams Co.
