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July 1, 2008

Defendants Call Ruling a “Landmark Victory for Common Sense”

PROVIDENCE, R.I. – In a significant and long-awaited ruling, the Supreme Court of Rhode Island today rejected a public nuisance lawsuit filed nine years ago by the Attorney General of Rhode Island against former manufacturers of lead pigment used in residential paint. Ruling unanimously 4-0 in the closely-watched case, the Court entered a judgment in favor of three former manufacturers and dismissed the case.

The Court found that “the public nuisance claim should have been dismissed at the outset” because that State cannot allege that the defendants’ conduct interfered with a public right or that the defendants were in control of lead pigment at the time it caused harm to children.

“Today’s ruling is a landmark victory for common sense and for responsible companies that did the right thing,” said Charles H. Moellenberg, Jr., an attorney for The Sherwin-Williams Company, speaking on behalf of defendants Sherwin-Williams and Millennium Holdings, LLC. “This case never should have been filed – it was factually wrong and legally flawed. A company should not be held liable when there is no proof that it did anything wrong. It has taken nine years and two juries, but the Supreme Court’s decision today puts public nuisance law in Rhode Island squarely in line with the overwhelming majority of jurisdictions of the United States.”

With today’s decision, public nuisance lawsuits against former manufacturers have been rejected by all courts in which the cases are resolved – Missouri, New Jersey, Illinois, and New York – and by a jury in Wisconsin. Public nuisance cases are pending in Ohio and California.

The Rhode Island Supreme Court’s decision also noted that the Rhode Island General Assembly’s approach to lead paint and the State’s regulations aimed at reducing lead hazards “have proven effective and, as a result, the entire state – including its ‘core cities’ – has experienced substantial declines in lead poisoning.”

“This decision is a sound and unequivocal rejection of the State’s attempt to misuse the public nuisance doctrine,” said Moellenberg. “Blood lead levels in Rhode Island are at historic lows, and are continuing to decline dramatically. Federal and state regulations establish that intact lead paint is not a hazard, and the vast majority of property owners in Rhode Island are responsible and maintain their properties. But some landlords do not maintain their properties and allow old paint to deteriorate. Litigation is a distraction from the proven solution of enforcing the law against landlords who neglect their property. We will continue our efforts to prevent lead hazards from arising.”

Among the earlier state court rulings that held public nuisance cases invalid, the New Jersey Supreme Court last year said a suit there “would stretch the concept of public nuisance far beyond recognition.” In 2005 an appellate court in Chicago said that defendants did nothing wrong by lawfully promoting and selling lead pigments decades ago, because the cause of the alleged public nuisance was the “Chicago landowners [who] continue to violate laws that require them to remove deteriorated paint.”

Case Background

In a filing that received national attention at the time, the Rhode Island Attorney General in 1999 sued former manufacturers of lead pigment used in paint under a “public nuisance” legal theory. In October 2002, a trial ended in a mistrial when the jury voted 4-2 against the State, but was unable to reach a unanimous verdict.

In 2006 a second jury found that the cumulative presence of lead pigment used in paint decades ago is a public nuisance in Rhode Island and that Sherwin-Williams, Millennium and NL Industries, Inc. are liable to abate the nuisance. Defendant Atlantic Richfield was found not liable.

In arguments to the Supreme Court in May 2008, the defendants highlighted various improper rulings by the trial court, including several fundamental flaws and violations of basic notions of justice and due process by the trial court.

In the meantime, blood lead levels in Rhode Island have dropped in dramatic fashion over the nine years since the case was filed. In 2007, the incidence of elevated blood lead levels in Rhode Island was 1.3 percent, the lowest since measurement of elevated blood lead levels began in Rhode Island more than a decade ago.

Historical Background

Interior lead-based house paint has not been made in more than 50 years. When it was made, it was sought after as the best wall covering because it was washable and durable. The federal and many state governments specified it for a wide variety of uses, including housing projects.

In 1955, manufacturers acted voluntarily to eliminate the sale of lead-based interior residential paint. The industry led this effort, working with public health officials to adopt a voluntary national standard and to develop product warnings long before the federal government banned consumer uses of lead paint in 1978.

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