PROVIDENCE -- Both sides rested yesterday in the state's landmark lawsuit against the nation's paint companies, and Superior Court Judge Michael A. Silverstein told the jury it would hear closing arguments tomorrow.
That will bring the trial to an end after exactly seven weeks. The state is seeking to prove the paint companies created a public nuisance when they made and marketed the lead-based paints two generations ago that now poison thousands of Rhode Island children each year.
Silverstein is scheduled to listen today to the paint companies' motion for him to dismiss the state's case rather than send it to the jury. He also will hear arguments from both sides about legal instructions the judge will give to the jury tomorrow afternoon.
The judge also brought up an important question that has simmered for months -- if the state wins its nuisance case, must the same jury be impaneled when the case precedes to later phases establishing liability and remedies?
Silverstein ordered both sides to be prepared to argue that issue immediately after the jury leaves for its deliberations.
The defendants have argued that it's their constitutional right to have the same jury during each phase of the case, Silverstein said. Silverstein pointed out that the current trial started with six jurors and six alternates and during the last seven weeks three people have asked to be excused for one reason or another.
What's more, he said, neither side has done much discovery to prepare for the next phase, a trial to determine liability. Silverstein has said in the past that such discovery could take a year or more.
It's important to decide whether the jury will be used for later phases, because if it is, Silverstein said he would instruct the jurors not to talk to lawyers for either side after the current case ends.
Silverstein also announced that he will sequester the three alternate jurors until a verdict is reached. That way if something happens to a regular juror in the next few days, he or she could be quickly replaced.
Much of yesterday was spent concluding the state's cross-examination of defense witness Gordon Rausser and arguing over the admissibility of certain evidence.
After lengthy arguments, Silverstein decided to allow only the cover and one paragraph of a special report to the Clinton administration entitled: "Eliminating Childhood Lead Poisoning -- A Federal Strategy Targeting Lead Paint Hazards."
Defense lawyer John Tarantino argued the state could have submitted the report at any time during the presentation of its case, but it was inappropriate to use as rebuttal evidence.
During the cross-examination, state lawyer Linn Freedman got Rausser, a University of California economist, to agree that the state has been cleaning up lead-hazard houses at a rate of about 250 a year. At that rate, he agreed that it would take 120 years to clean up the 30,000 housing units considered "high risk" and in urgent need of abatement.
"Doesn't urgent mean less than a century, professor?" Freedman asked.
Rausser argued that new legislation enacted earlier this year should speed the rate of cleanups and abatements.
Rausser also agreed under questioning from Freedman that he has given more than 100 depositions for other lawsuits and has testified on behalf of several of the corporations that are defendants in the Rhode Island case and several of the law firms now representing those corporations.
Rausser also acknowledged that he charges $550 a hour for his services and his consulting firm charged the paint companies nearly $600,000 since late May.
Under questioning from Tarantino, Rausser said the fees covered work that wasn't presented at trial. Rausser testified for less than a day and a half.
