Superior Court Judge Michael A. Silverstein tells the jury to disregard a question asked Tuesday by the prosecution that suggested liability by the defendants.

01:00 AM EST on Thursday, November 17, 2005

BY PETER B. LORD and BRANDIE JEFFERSON
Journal Environment Writers

PROVIDENCE -- An assistant attorney general posed a question before the jury in the state's lead-paint trial Tuesday that was "clearly" prejudicial, irrelevant to the case and presupposed the defendants' liability, Superior Court Judge Michael A. Silverstein ruled yesterday. But it was not so inflammatory that he felt the need to grant a mistrial.

Silverstein's decision means the state's landmark trial of four companies that once manufactured lead-based pigments will continue, following a hiatus of nearly two days for paint company and state lawyers to argue over the calls for a mistrial by the defendants.

With the trial entering its third week, the courtroom audience is usually sparse. But when Silverstein took the bench yesterday afternoon to issue his ruling, the courtroom was filled with additional journalists and lawyers.

Attorney General Patrick C. Lynch took a seat in back, on the side usually occupied by paint company lawyers. Former Iowa Attorney General Bonnie Campbell, a spokeswoman for the paint companies, watched from the other side.

Following the ruling, Campbell had no comment. But a beaming Lynch stepped outside the courtroom and praised Silverstein for the way he has guided the case during the last six years. He also lambasted the defense.

"We want to continue our search for justice before this jury and not give in to those who would spin and twist the facts," Lynch said.

The state is trying to prove that the companies created a public nuisance by manufacturing paints two generations ago that continue to flake off houses and poison children. According to guidance from Silverstein, the state must first prove that a public nuisance was created, then it can present testimony on liability and damages.

The companies essentially argued that Assistant Attorney General Neil F.X. Kelly got ahead of himself Tuesday when he asked former state Health Director Patricia Nolan whether the defendants, Sherwin Williams, Atlantic Richfield, NL Industries or Millennium Holdings LLC, "contributed any funding or other support to any state programs in the state of Rhode Island to address the lead-poisoning problem."

Yesterday morning, Donald Scott, representing NL Industries, argued that "inaction, or a failure to pay for abatement" was not the same as having a responsibility for creating a public nuisance, and so Kelly's question was irrelevant.

Millennium Holding lawyer Michael Nilan and Sherwin-Williams lawyer Paul M. Pohl both argued, briefly, that the question was leading and extremely prejudicial, even though Nolan didn't answer.

"There was no one in this room," Nilan said, "that didn't know what the answer was going to be."

But Fidelma Fitzpatrick, representing the state, argued that there was nothing leading about the question. "[Nolan] can say 'yes.' She can say 'no.' She can say 'I don't know.' "

"The mistrial only comes in the rarest of circumstances," Fitzpatrick said, "in which nothing could be possibly said that would allay the jury's inflamed passion."

After hearing hours of arguments, Silverstein said yesterday he concluded that the question "wrongfully presupposes and suggests liability on the part of the defendants."

He also asserted "any substantive question that seeks an answer favorable to a particular party is prejudicial," but in seeking to determine whether the question was wrongfully prejudicial, he relied on a ruling by Supreme Court Justice Florence Murray that suggested focusing on whether a statement "so inflames the passions of the jury so as to prevent their calm and dispassionate examination of the evidence."

Silverstein said he saw no evidence that convinced him that he couldn't remedy the problem by making an "appropriate curative instruction" to the jury, which he did once they returned to court at 2:30 p.m.

He told the jury that Kelly's question was improper and should not have been asked.

The state concluded its examination of Nolan, asking her about sufficient methods of lead-paint abatement. Kelly asked her if it was necessary to get rid of all lead paint in houses to make them safe for children.

"No," she said, "but the more we can do permanent solutions, the better."

The state introduced its next witness, Dr. Michael Kosnett, a professor at the University of Colorado, Denver, who specializes in medical toxicology and environmental health.