PROVIDENCE -- A jury of five women and one man began deliberations on the state's lawsuit against the nation's paint companies late yesterday morning, but went home at day's end without a verdict.
Soon after they began their work, the jury sent a note to Judge Michael A. Silverstein with four questions that seemed to indicate the jury plans to do a thoughtful and careful job of analyzing evidence that was submitted during the seven-week trial.
The jury asked whether there was a numbered index of exhibits. Silverstein provided one. It asked for a calculator, and he handed one over.
It asked if it could request transcripts of testimony and copies of opening statements. Silverstein reminded the jury that lawyers' opening statements are not evidence. He also said the jury isn't permitted to ask for transcripts, but portions of testimony may be read back to them.
The jury's fourth question caused some disagreement between the two teams of lawyers. The jury is being asked to answer yes or no to this question: "Does the presence of lead pigment in paint and coatings on houses, schools, hospitals and other public and private buildings throughout the state of Rhode Island constitute a public nuisance?"
A public nuisance, Silverstein explained, is caused by an unreasonable interference with the health, safety, peace, comfort or convenience of the general public. An essential element, he added, is that "persons have suffered harm or are threatened with injuries they ought not have to face."
The jury asked whether its decision would be applicable to all locations identified on the verdict form.
That question could be important because the state conceded near the end of the trial that it had no evidence that lead paint in hospitals, churches or public buildings had poisoned any children.
So defense lawyer John Tarantino told Silverstein he should answer yes to the jury. But Silverstein declined. Instead he read from a July 3 decision he issued as both sides prepared for the trial.
He said: "You don't have to find that each individual building is a nuisance. You're not being asked to determine if a discreet group of homes is a nuisance."
Earlier in the day, Silverstein appointed the one man on the jury, a retired Air Force major, as foreman.
He also made two key rulings that will affect the jury's future.
When the trial started, six alternate jurors were appointed. As the trial progressed, three alternates were moved to the jury because three jurors asked to be excused for various reasons.
Now with the case before the jury, Silverstein said he wanted to keep the three alternates in a separate room at the courthouse in case yet another replacement was needed before a verdict was reached.
Attorney Gerald C. DeMaria called the judge's attention to a state law that says alternates will be discharged when a case goes to the jury.
Silverstein considered that argument, and ruled yesterday that both sides waived the rules when they agreed to start out with more alternate jurors than usual, so he was waiving the rules now. The three alternates will keep coming to the courthouse until there is a verdict.
The companies also argued that if the jury rules in favor of public nuisance, and the state proceeds to try other phases of its case establishing liability and remedy, the paint companies have a right to have the same jurors hear those cases.
That demand could have been problematic for several reasons. How many jurors would want to return for another long trial, after sitting through seven weeks of the current trial? How many would actually still be around? With only three alternates left now, what are the chances that the total group might be less than six when a subsequent trial starts a year or more from now?
Silverstein rejected the companies' plea. This jury will be done when it finishes ruling on public nuisance.
Find out more about lead poisoning in Rhode Island, how to cope with it and the state's case against the paint companies at:
http://projo.com/extra/lead/
