The Sherwin-Williams Co., which lost its first lead-paint lawsuit in Rhode Island last winter, wants to make certain future cases don't get so far. Last week the company sued three cities in Ohio for even thinking about filing similar lawsuits.

Sherwin-Williams believes that these well-intentioned cities and public officials have been misled by lawyers who are acting in concert pursuant to a common strategy to stir up litigation for their own gain across the state in blatant disregard of Sherwin-Williams' constitutional rights, the company says in a complaint filed with the U.S. District Court for the Southern District of Ohio.

The paint company sued the cities of Columbus, East Cleveland and Toledo and various public officials in each city to "prevent the unconstitutional chilling and violation of its rights under the First Amendment and due process clause of the U.S. Constitution."

The suit claims that the law firm of Motley Rice, which represented Rhode Island in its successful lawsuit, solicited several Ohio communities to file similar suits under the theory of public nuisance.

"These trial lawyers, attempting to garner huge contingency fees, have allied with certain Ohio trial lawyers, to instigate this new wave of litigation by certain Ohio cities," the suit alleges.

Jack McConnell, the Motley Rice partner who spearheaded the Rhode Island lawsuit, said yesterday he saw an identical tactic used by the tobacco companies as they sought to defend themselves from litigation by Motley Rice and many states in the 1990s.

They sued the attorney general of Massachusetts even before he sued them, said McConnell of the tobacco companies.

"This is a suit that attempts to intimidate public officials before they file," said McConnell. "There is no legal basis. They are just disparaging us [Motley Rice]."

McConnell said the preemptive lawsuits by the tobacco companies were all thrown out of court, and he suspects the same will happen with Sherwin-Williams suit.

Sherwin-Williams spokesman Bob Wells said intimidation is not the goal. The paint company believes the trial lawyers are misleading the communities as they persuade them to sue.

"We think this may prompt some of these cities to stop and take a deep breath. We do not believe they were given all the facts. We want an opportunity to meet with them and give them all the facts."

Sherwin-Williams is based in Ohio and knows the state well, Wells said.

"There are examples throughout the state of local governments enacting good public policy that has been successful in lowering blood lead levels," Wells said. "I'm saying litigation is a tremendous distraction to good public policy."

Despite the lawsuits by Sherwin-Williams, McConnell said, Toledo, East Cleveland and Akron have all gone ahead and filed their complaints against the paint company.

McConnell said the company strategy comes from the law firm of Jones Day, which represented many of the tobacco companies.

"It's legal lunacy," McConnell said. 'It's all driven by the defense lawyers who get paid by the hour."

In Rhode Island, the state has estimated that Sherwin-Williams and two other defendants should pay between $1.37 billion and $3.74 billion to clean up lead paint on local houses so that no more children are lead poisoned.

The companies filed voluminous appeals of the state's case and both sides are awaiting rulings by Superior Court Judge Michael Silverstein.

Sherwin-Williams makes three legal arguments in its Ohio lawsuit.

It said it is being sued in part because of its membership in paint company trade groups, and that violates its rights to freedom of association and free speech.

The suits apply medical standards unknown when the paints were made, violating the company's right to due process.

The use of private trial lawyers representing the municipalities violates Sherwin-Williams right to due process of law by a financially disinterested public official.

plord@projo.com / (401) 277-8036