John A. MacFadyen, lawyer for NL Industries, listens to arguments before the Rhode Island Supreme Court as final arguments are made in the appeal of the lead-paint convictions.

The Providence Journal / Bill Murphy

PROVIDENCE — If there has ever been a bigger civil case in Rhode Island than the state’s lead-paint lawsuit, no one seems aware of it. Three paint companies could be forced to spend $2.4 billion renovating virtually every older house in Rhode Island — 240,000 or more.

And unless the case is overturned, the three defendants would surely face more lawsuits across the country and the possibility of losing billions of dollars more.

Fittingly, the Rhode Island Supreme Court yesterday set aside nearly four hours to hear arguments from 13 lawyers on the companies’ appeals of a 2006 jury verdict that found they created a public nuisance by selling the lead-pigment paints in the first half of the last century that continue poisoning children today.

The four justices who heard the appeals frequently commented on the scale of the case. And they also seemed skeptical of the legal theories endorsed by Superior Court Judge Michael Silverstein as he presided over eight years of litigation and two trials.

“Is there any [settled] case that authorizes retroactivity as vast as this case?” asked Justice William P. Robinson III. “I’m not aware of any.”

Robinson later referred to the case as involving a “mega, amorphous tort” and said it was unprecedented to use modern scientific knowledge to impose liability for an era when the scientific knowledge did not exist.

Justice Paul A. Suttell said the state’s case reminds him of the seven blind men and an elephant. Each of them recognizes part of the animal, but none know what it looks like as a whole. Similarly, he said, the state makes all the arguments for the elements of public nuisance, but when you stand back, “it doesn’t fit the traditional concept of public nuisance.”

Presiding Justice Frank J. Williams said no other state appellate court has endorsed a nuisance suit such as the one tried by Attorney General Patrick C. Lynch.

When Fidelma Fitzpatrick, arguing for the state, attempted to disagree, Williams repeated, “No other state.”

She said Ohio faces a similar suit, but Williams said “Ohio is waiting to see what we do.”

Lawyers for the three defendants, Sherwin Williams Co., Millennium Holdings and NL Industries, also argued that there are no cases anywhere in the country that support the public nuisance theories used by the state.

“This court has written 75 decisions on public nuisance,” lawyer John A. MacFadyen said to the justices. “No case has held that a lawfully sold product could be considered a public nuisance.”

To prove public nuisance in Rhode Island, MacFadyen said, it must be shown in a specific, physical place; the nuisance must be under the control of the accused, and it must intrude on the public’s rights.

None of the arguments presented by the state fit those criteria, MacFadyen said. “Even Julio Lugo is catching them better than that.”

William J. Kayatta, Jr., representing Millennium (Glidden Paints) said he spent the first three years of his life in a house nearby on Pleasant Street. He argued there was no evidence introduced that Glidden Paints were ever used on his house or any other house in Rhode Island.

Paul M. Pohl, representing Sherwin Williams, called the state’s entire case a fiction because it was based on aggregate numbers of older houses treated with lead paints rather than focusing on specific houses.

“This is the not only the first case in Rhode Island, it’s not only the first case in the United States, it’s the first case in the English-speaking common-law world where people charged with creating a public nuisance were not allowed to see that nuisance,” said Pohl.

Fitzpatrick argued that lead paint is found on tens of thousands of houses in every town in Rhode Island.

“It’s so diffuse, so widespread — that’s precisely why it’s a public nuisance,” she said. As with an air-pollution case, there is no point in looking at the effects on every house. What’s more, she said the defendants clearly controlled the paints when they sold them, and that’s when the nuisance was created.

Justice Francis X. Flaherty asked if the nuisance wasn’t created by degrading property. Fitzpatrick disagreed. Intact paint will inevitably degrade, she said, so the potential nuisance arises as soon as it’s applied to a building.

John M. McConnell, a Motley Rice lawyer representing the state, resurrected arguments he used in his closing at the trial. If the defendants hadn’t sold the paints, he said, 36,000 children would not have been poisoned.

Judge Silverstein presided over the case over eight years and two trials (the first was a mistrial), he said. The second jury spent four months hearing testimony and eight days deliberating. It found in favor of one defendant, Arco. Silverstein then spent another year reviewing the case.

“Did the jury and Judge Silverstein act unreasonably?” McConnell asked. “This case requires extra deference to the judge and jury.”

McConnell said the defense lawyers were making a selective use of facts.

The four companies produced 78 percent of the lead pigments used by hundreds of paint companies across the country, McConnell said. They were national companies. A historian testified they sold their paints in Rhode Island.

Williams kept asking the lawyers how Silverstein ruled or what his response was on specific issues. “We’re not dealing with a neophyte jurist here,” Williams said.

The court said it would issue a decision by July.

The lawyers also debated several lesser issues:

• The state argued for reinstatement of tens of millions of dollars in compensatory damages it felt were owed to state agencies that worked on lead issues. Silverstein threw out that claim. Laura E. Ellsworth, representing the defendants, called the state’s claims “utter, sheer speculation.”

• The state tried to resurrect its claims against Arco. Company attorney John Tarantino said the claims were groundless.

• The state argued Judge Silverstein should not have fined Lynch $15,000 after finding him in contempt twice for criticism he made of the paint company lawyers. The rule he allegedly violated was vague, said lawyer James R. Lee. Justice Robinson questioned whether Silverstein’s actions barring critical comments didn’t amount to prior restraint.

• The defendants argued the 16.6 percent contingency fee the state has agreed to pay McConnell’s firm raises ethical, constitutional and policy issues. The defendants have a right to be prosecuted by a neutral officer of the court, argued Tarantino, not by lawyers who stand to profit from a conviction.

Kelly said the state has been fighting the companies for nine years; there’s no way they could do that without outside help.

The state Webcast the hearing, a first for the Supreme Court, and an average of 385 people monitored the arguments on the Internet.

plord@projo.com