Further Commentary on the Rhode Island Lead Paint Trial

To add some additional color commentary to Andrew's coverage of the Rhode Island lead paint trial in Today's Lead Paint Filing and The Lead Paint Trial Continues, here are excerpts from the February 27 Wall Street Journal editorial Motley Legal Crew (available for a fee):

Even as its asbestos and silicosis scams are unraveling, the trial bar is looking for its next industry to loot. It may have found it last week in a state court in Providence, Rhode Island, where a jury found three paint companies liable for creating a "public nuisance" by selling lead paint many decades ago. The mere presence of lead paint -- whether or not it was safely contained -- was deemed a danger to public health.

There are so many screwy aspects to this case that it's hard to know where to begin. The jurors heard no evidence about an injured party, nor were they informed of any specific house or building that constituted the "nuisance." As for the defendants, Judge Michael Silverstein instructed the jury that it wasn't necessary to find that Sherwin-Williams, NL Industries and Millennium Holdings had actually manufactured the paint present in Rhode Island or that they had even sold it there.

Oh, and did we mention that at the time the companies may or may not have sold lead paint in Rhode Island it was an entirely lawful product? "The fact that the conduct that caused the nuisance is lawful does not preclude liability," Judge Silverstein said. Lead paint was banned for residential use in 1978.

The legal "reasoning" at work in Rhode Island comes courtesy of Motley Rice, the South Carolina law firm that won hundreds of millions of dollars in contingency fees for its litigation against tobacco companies and is now seeking new deep pockets. It marketed its lead-paint strategy to the state government, which agreed to pay the trial lawyers 16 2/3% of whatever settlement is reached. Sheldon Whitehouse, who was attorney general at the time, is already trumpeting the verdict as part of his campaign for the Democratic nomination for the U.S. Senate.

The potential Rhode Island jackpot looks to be enormous. Judge Silverstein could order the paint companies to fork over millions, or even billions, of dollars in clean-up costs. That's not including the possibility of punitive damages...

There is also the not-so-little matter of public policy, and who has the authority to make decisions about the 300,000 or so buildings in Rhode Island that contain lead paint. Judge Silverstein's abatement orders are likely to be in direct conflict with the guidelines set down by the U.S. Centers for Disease Control, the Department of Housing and Urban Development, the Environmental Protection Agency and the state Health Department.

The recommended and sensible maintenance policy of all these agencies stresses painting over lead paint to keep it from peeling or flaking. Maintenance works, as can be seen by the dramatic drop in the prevalence of lead poisoning among children in Rhode Island. The state department of health reports only about 1,600 cases a year, mostly in low-income families. The state knows their addresses. A better way to help these children would be to go after landlords who don't maintain their properties properly...

The bizarre tort theory in Rhode Island is terrible news for the paint business and the thousands of people it employs, and it has potential ramifications for other industries that make lawful products that years later turn out to have health or safety problems. It also demonstrates once again that "liability" in America has become completely untethered to either legal precedent or basic fairness.