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Some defendants in Rhode Island’s public-nuisance suit against the lead paint industry sought but failed to get the trial judge to paint himself out of the picture. Sherwin-Williams Co. was first to urge Superior Court Judge Michael Silverstein to recuse himself because he failed to disclose until recently that he lived in a home that was built before 1978. Paint in many, if not most, homes of that era contained lead. The litigation, set for trial on Oct. 17, arises from the defendants’ manufacture of lead-based pigments. Flaking lead paint and dust associated with lead paint can cause severe and irreversible brain damage in children, as well as death and other disorders. The company alleged that Silverstein might personally benefit if the state prevailed. Rhode Island v. Lead Industries Assoc., No. 99-5226 (Providence Co., R.I., Super. Ct.). Some, but not all, defendants joined the recusal motion. The judge denied the motion. On Aug. 19, the Rhode Island Supreme Court referred the defendants’ petition for certiorari to the court’s Sept. 8. conference, but denied a stay. In 2002, because the state had brought the action and not individual plaintiffs, Silverstein denied the defendants’ motions to notify potential class members. The defendants then assumed that any award would inure to the state and not individuals, said Sherwin-Williams attorney Paul (Mickey) Pohl of Jones Day’s Pittsburgh office. But when the state recently laid out the specific remedies it sought, “It smelled like a class action,” said Pohl, because the state sought benefits for individual homeowners. “What we now know . . . is that when the judge said notice didn’t have to be given . . . he was an affected class member,” asserted Pohl, explaining the reason he had not brought the motion earlier. “It is essential to public confidence in the system that judges watch the issues in a case, and if any of their property interests become implicated, they have to disclose it to the parties.” A ‘frivolous motion?’ Rhode Island Attorney General Patrick C. Lynch called Pohl “despicable and utterly outrageous” for bringing this “frivolous motion.” “He spit at the trial system and the thousands of children these companies have poisoned,” said Lynch. “We’re on the eve of a trial they’ve been trying to duck for years, and using any method available . . . to attempt to derail the process.” Lynch likened the case to a utility matter, which might affect the rates of a judge as a consumer, but where disqualification is not required. Silverstein noted in his opinion that roughly 80% of the state’s housing stock was constructed before 1978. He said that an interest shared in common with the public is distinguishable from cases where the judge has a specific interest. Silverstein and his wife subsequently executed a waiver of any benefits they could receive as a result of the litigation. The state high court has agreed to hear a writ challenging the state’s use of outside counsel in this litigation because they were hired on a contingency fee basis. [NLJ, 6-13-05].

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