Contributors
Fidelma Fitzpatrick/Bob McConnell/Jack McConnell:
01:00 AM EDT on Tuesday, August 19, 2008
THE RHODE ISLAND Supreme Court got it terribly wrong in its decision in the recent lead-paint case.
First, it let wrongdoers off the hook without any responsibility for the consequences of their actions. It simply defies any reasonable sense of justice to let wrongdoers — corporate or individual — walk away from a problem they helped create.
For decades, the lead-paint companies caused tons of toxins to be dumped in our homes, schools and other buildings, all the while they knew it could poison, and even kill, children. Instead of doing the responsible thing by pulling their poison off the market, they went on a promotion and selling frenzy, ensuring that the overwhelming majority of homes built before 1978 had lead paint on their walls.
And when finally forced to stop selling their deadly poison by the federal government, after decades of fighting any regulation of their product, they continued to mount their campaign of deceit, disinformation and dishonesty by denying culpability and even trying to convince people that lead poisoning was no big deal. Their conduct was despicable. As Rhode Island Atty. Gen. Patrick Lynch rightly stated, this was a case “to force the paint companies that unleashed this poison on our state . . . to come to the table and contribute to fixing it.”
Yet, the court ruled that these corporations bear absolutely no responsibility for the mess that a unanimous jury of Rhode Island citizens and the distinguished trial justice, Michael A. Silverstein of the state Superior Court, determined — after hearing all of the evidence in a four-month trial — they helped create.
Landlords are responsible for maintaining a home safe from lead, homeowners are responsible for keeping their kids safe, taxpayers are responsible for paying medical expenses and abatement costs of lead. Yet the corporations that started this public-health crisis bear no responsibility under the Supreme Court’s opinion. They got away scot-free. Justice was not served.
Second, the court overturned and ignored centuries of public-nuisance law — meant to protect the public from injury before it happens — and to hold those responsible who contributed to its creation. Now under the court’s opinion, once you give up control of the premises you pollute and the polluting product, you escape all liability for the public nuisance.
Abraham Lincoln warned that “you cannot escape the responsibility of tomorrow by evading it today.” Unfortunately, under this opinion you can escape responsibility for future harm by simply dumping and running. In reaching this incredibly sweeping regression of established law in our state, shockingly the court’s opinion relied primarily on law-review articles paid for and authored by the lead industry’s own hired consultants and lawyers.
Third, the state was very close to solving the problem of childhood lead poisoning when the court brought the public-health remedy in the works to a screeching halt. These companies had over $3 billion of insurance available to them to solve the problem, yet not one dime will now be available to keep Rhode Island kids healthy, or to help landlords and homeowners maintain safe homes, or to relieve taxpayers of the burden of lead paint.
Fourth, the money that these corporations spent on defense lawyers and public-relations firms to influence the outcome of this case is simply obscene. As of 2004 (well before the second trial even began), Sherwin Williams alone had spent in excess of $102 million on defense attorneys’ fees and costs. They hired scores of former public officials — including a former U.S. attorney general, a U.S. solicitor general, congressmen, a White House chief of staff, governors, many state attorneys general and even the spouse of a Rhode Island Supreme Court justice — all sought influence in the process. Yet while the defense lawyers and lobbyists profited mightily from assisting them escape any responsibility, the lead companies spent no money whatsoever in solving the problem they helped to create.
Finally, lead poisoning is prevalent throughout Rhode Island, but it disproportionately affects the least powerful among us — inner-city children, children of color — people without any voice in the system. The Rev. Martin Luther King Jr. taught us that “injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” The Supreme Court’s closing of the door on a just solution to their problem is a great injustice that affects us all. As Marian Wright Edelman, founder of the Children’s Defense Fund, said: “If we don’t stand up for children, then we don’t stand for much.” Sadly, it appears that in the world of justice for lead-poisoned kids, we don’t stand for much in Rhode Island anymore.
The Supreme Court said that their “hearts go out to those children whose lives forever have been changed by the poisonous presence of lead,” but they should be reminded of the admonition from Saint Augustine, who said: “Charity is no substitute for justice withheld.”
Fidelma Fitzpatrick, Bob McConnell and Jack McConnell, of Motley Rice LLC, were outside trial lawyers for the State of Rhode Island in its suit against lead-paint companies.
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