PROVIDENCE -- The nation's paint companies made one last effort to block
the start of the state's lead-paint trial against them yesterday by
charging that the state's reliance on legal teams working for
contingency fees was unethical.
Judge Michael A. Silverstein responded that the trial will cost
"millions and possibly multiple millions of dollars" and it would tie
the state's hands to prevent it from using private law firms paid with
contingency fees. He rejected the paint company argument and said the
trial would begin as planned this morning.
Even as final pretrial arguments were being heard, workers wheeled in a
truckload of electronic equipment, including a projection screen,
computers and a modern sound system that will allow lawyers for both
sides to use slides, photos and other graphics to argue their cases to
the six-person jury.
Silverstein said the court clerk's office yesterday was inundated with
calls from news organizations who want to cover the trial.
He said he may allow one still camera and one television camera but no
more. He planned to meet with news organizations at 8:30 today in his
chambers. Lawyers for the paint companies asked to attend too.
Rhode Island is the first state to sue the paint companies, arguing they
created a public nuisance by selling lead-based paints years ago that
are now deteriorating and poisoning young children. The paint companies
respond that their paints are safe when maintained; the real culprits
are those who allow the paints to deteriorate.
Prompted by Atty. Gen. Sheldon Whitehouse, Silverstein divided the case
into phases. In this first trial, the jury will be asked to simply
decide whether the paints are a public nuisance. Whitehouse suggested in
later phases the court would consider what companies are liable, what
the damages should be and whether third parties, such as landlords,
should be sued.
So far, Silverstein has refused to say how he plans to handle subsequent
phases, should the state prevail in this initial trial.
Yesterday, responding to a question from a paint company lawyer,
Silverstein said he hasn't decided whether the current jury would be
asked to hear later phases of the trial as well.
"If we get beyond phase one, there would have to be a great deal of
additional discovery -- we might be talking a year or more," Silverstein
said. "I don't know how long we can keep a jury on the hook."
Attorney John Tarantino, lawyer for the paint companies, presented a
recent court decision from California to support his argument against
the contingency fee contracts. The state hired Ness Motley and Decof &
Decof to try much of its case. The two firms agreed to charge 17 percent
of any settlements, which they said is half the usual rate.
Tarantino argued that just as it is inappropriate for attorneys to get
contingency fees for handling criminal cases or divorces, or for the
attorney general to pay bonuses to his staff should they win big cases,
there would be overwhelming pressure on Ness Motley and Decof & Decof to
prove their case because if they don't, they won't get paid.
If the state really believed that lead paint on hundreds of thousands of
Rhode Island homes was a public nuisance, it would have found the
necessary public funds to press its lawsuit rather than relying on
lawyers working for contingency fees, Tarantino said.
Silverstein said he couldn't find any prohibition in Rhode Island
against such a relationship and he didn't believe a decision in one
other state should have an effect on policies here.
The defendants are American Cyanimid Co., Atlantic Richfield Co., E.I.
duPont deNemours & Co., NL Industries, The O'Brien Corp., Millennium
Inorganic Chemicals Inc., ConAgra Grocery Products Co. and The Sherwin
Williams Co.
