Rhode Island news
State urges court to reject appeal by paint companies
01:00 AM EDT on Tuesday, March 18, 2008
PROVIDENCE — The State of Rhode Island, backed by briefs from more than 50 organizations and public health experts, filed legal papers yesterday urging the state Supreme Court to reject an appeal by three corporations seeking to overturn a jury’s verdict two years ago that found their lead-based paints created a nuisance by poisoning children throughout the state.
“Having evaded their responsibility to the state and to its citizens for decades, these defendants now come before this court seeking immunity for their role in creating this public nuisance,” said the brief filed by Attorney General Patrick C. Lynch’s staff and private lawyers at Motley Rice LLC. “Armed with little more than alarmist proclamations and doomsday rhetoric, they ask that this court take a bold, unprecedented step that would eviscerate over a century of established Rhode Island law.
“In one fell swoop, defendants attempt to rewrite the law on public nuisance, carving out judicial immunity for themselves and ensuring that they will never be held accountable for the consequences of their actions,” the state argued.
Lynch, in a statement yesterday, said the defendants’ arguments to the Supreme Court “are no more availing than the arguments made to the trial court; the story they tell is no more convincing than the one already rejected by the jury.”
The state filed hundreds of pages of arguments that focused on legal issues surrounding Rhode Island’s public nuisance law, procedural and factual issues, and an argument over separation of powers and constitutional error that was advanced by one defendant, Sherwin-Williams.
The state and the defendants — Sherwin-Williams, Millennium Holdings LLC, and NL Industries — are scheduled to make oral arguments before the Supreme Court on May 15.
At stake is an estimated $2.4 billion in work the companies could be ordered to do to remove lead paints from some 240,000 houses and apartments throughout the state.
Also at stake is legal precedent: the companies have been sued dozens of times by cities, housing boards and states, but never lost until the Rhode Island case. The state’s lawsuit was initiated nine years ago by former Attorney General Sheldon Whitehouse, who is now one of Rhode Island’s U.S. senators. A first trial ended in a hung jury. Following a second trial, a jury found three of four defendants created a public nuisance.
In briefs filed last month, the paint companies alleged that the state failed to prove any of their paints were used on any building in Rhode Island, nor that they are responsible for the lead poisoning of children in Rhode Island.
The companies also argued that requiring them to clean up the lead paints on Rhode Island buildings violates the separation of powers premise in state government by allowing the judicial branch to override the legislative branch, which enacted a lead-hazard mitigation act that requires property owners to take responsibility for ensuring their buildings are safe.
But the state said yesterday there was direct and unrefuted evidence that the three companies sold lead-based paints in Rhode Island two generations ago.
Most of the evidence came in testimony by David Rosner, a professor of history and public health at Columbia University, who co-wrote Deceit and Denial, a book about lead poisoning. Rosner testified that all three companies heavily advertised and sold their paints in Rhode Island.
Rosner’s co-author, Gerald Markowitz, a professor of history at John Jay College, also testified that there was extensive evidence that the companies were fully aware that their products were poisoning children and they discussed the resulting bad publicity as long ago as 1930.
The state in its papers described litigation that was “fierce” at times. It said at one point there were 121 lawyers who appeared for the defendants. Written legal pleadings exceeded 2,000. Trial judge Michael A. Silverstein issued 18 written decisions and 174 separate orders. Some 412 depositions were taken. On the eve of trial, defendants requested an emergency stay from the U.S. Supreme Court. The state’s lawyers produced tens of millions of pages of documents.
“This complex and historic case was filed in Superior Court nine years ago, and the Rhode Island court system met and mastered its unique challenges: from the special assignment of the case at its inception to a single, thorough, and dedicated trial judge, who literally and figuratively ‘moved the bar,’ adapted the courtroom for the use of new trial technology, single-handedly sifted through thousands of motions and pre-trial issues, and presided over one of the longest civil jury trial in the state’s history, this has been Rhode Island judiciary at its best,” argued the state.
Among the “friends” supporting the state’s position are: the Rhode Island Chapter of the American Academy of Pediatrics, the Alliance for Healthy Homes, the Natural Resources Defense Council and the Childhood Lead Action Project.
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