Today's Lead Paint Filing

According to both the Projo's 7-to-7 blog and NBC-10, the three paint manufacturers found liable for what could amount to billions of dollars in damages in the Rhode Island lead paint trial have filed suit in Rhode Island Superior Court asking for either a dismissal of the case or for a new trial to be held. This is a separate filing from the filing based on contingency fee issues reported earlier this month.

A joint press release issued by NL Industries, Millennium Holdings, and Sherwin-Williams details what they believe to be grounds for overturning last month's verdict. The most compelling arguments are the defendants' claims that the state never proved how much lead paint, if any amount at all, was sold by each company in Rhode Island...

Each defendant should have had a separate trial. The state consistently blurred evidence among defendants, resulting in an unfair trial to each;

The state evaded a dispositive motion by asserting that it was not relying on a "market share" liability theory. At trial, however, the state presented national "market share" data rather than any proof that the defendants' lead pigments are present in Rhode Island today and contributing to an alleged public nuisance. The use of market share data conflicts with Rhode Island Supreme Court precedent and doesn't show that any company was a substantial factor contributing to the alleged nuisance;

The state defeated numerous summary judgment motions and succeeded in striking defendants' affirmative defenses by assuring the court that this was not a product liability case. The state then turned around at trial and presented a product liability case, stripped free from any product-related defenses;

The state defeated summary judgment on the Manufacturer Immunity Act by contending that this case was not about the manufacture or sale of a product. But the state presented a case at trial premised solely and exclusively on evidence concerning manufacture and sale of a product;

The state failed to connect the evidence it promised -- such as defendants' advertising, marketing or sales activity -- to the state of Rhode Island.

The jury did not have to find that the defendants had done anything wrong;

By presenting a fictitious public nuisance theory, the state defeated defendants' efforts to join property owners, conduct property-specific discovery, and hold property owners responsible for not maintaining their properties. The court compounded the error by failing to instruct the jury about the responsibility of property owners to properly maintain their property,

Opening and closing arguments given by counsel for the state were so inflammatory and prejudicial that a new trial is necessary;

The State impermissibly sought to hold defendants liable for exercising their First Amendment rights to belong to trade associations, express their opinions and communicate with public officials;

The state convinced the court to delay its agency ruling for almost a year, promising additional evidence to legitimize the state's use of Lead Industries Association (LIA) evidence. No such evidence ever materialized at trial. It was only after the LIA information had been conditionally admitted that the state conceded that it had no further evidence, and the court finally ruled in defendants' favor. The incurable evidentiary damage, however, already had been done. The state then compounded this error by arguing "LIA" and agency issues during its closing arguments