News Features

How the lead paint case was won

A 'public nuisance' argument succeeded where 'product liability' has failed

By BY BRIAN C. JONES | February 28, 2007

Blame “Fidelma’s Wacky Idea” for Rhode Island’s victories in its landmark lead paint case.

That’s what Fidelma L. Fitzpatrick’s fellow lawyers initially nicknamed her legal theory, which argued that declaring lead paint a “public nuisance” might win a lawsuit against lead paint companies, reversing a string of losses in other states.

“We didn’t call it public nuisance at first,” says Jack McConnell, who heads the Providence office of Motley Rice, the law firm representing the state. “We referred to it as Fidelma’s Wacky Idea, because it was initially hard to get your arms around.”

Indeed, the public nuisance approach remains one of the most controversial aspects of the case, which could require three national companies to pay billions of dollars to counter the effects of lead paint on as many as 250,000 aging Rhode Island homes.

This week, Superior Court Judge Michael A. Silverstein turned aside requests by the companies to throw out a February 2006 jury verdict. Instead, the judge said he’ll appoint a special court “master” to oversee a cleanup process.

McConnell says previous cases against lead paint, which can harm children’s mental and physical development, failed when plaintiffs used a traditional “product liability” approach. While paint is indeed a “product” made by companies — which can be sued for alleged injuries — the lead pigment in paint can’t scientifically be tied to a particular manufacturer, thus checkmating the case, McConnell says.

So Fitzpatrick and others at Motley Rice theorized that rather than linking a company’s batch of paint to a specific house, the state could argue that the widespread presence of paint throughout Rhode Island poses a public health threat.

Critics, however, say public nuisance law wasn’t meant to cover product cases, and national groups, such as the American Tort Reform Association, say the case could put Rhode Island in the unsavory company of states that encourage unfair and costly lawsuits.

The critics point to elements in the Rhode Island case that seem to defy common sense, such as an absence of evidence that any building was tested to show its lead pigment came from any of the targeted companies.

The state argued it’s well-established that much of Rhode Island’s old housing stock is covered with lead paint, and that the three particular companies manufactured, promoted, or sold lead pigment that contributed to the “nuisance.”

In his 197-page ruling — which took more than a year to draft — Silverstein said the jury heard testimony that the companies were among a “handful” of lead pigment producers, which owned lead mines, and that sold and promoted pigment in Rhode Island.

“The jury could properly have concluded from this testimony that the defendants substantially participated in the sale of lead pigment nationally,” wrote Silverstein, and could conclude also that their “participation in Rhode Island was similarly substantial.”

Fidelma’s Wacky Idea isn’t out of the woods yet. The companies – Sherman Williams, NL Industries, and Millennium Holdings — say they plan to appeal Silverstein’s ruling to the state Supreme Court.

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