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To break the paint industry’s 15-year winning streak in lead liability cases, a team of New England litigators abandoned the standard products liability theories in favor of a novel application of the common law doctrine of public nuisance. The long march in what popularly has been called the Rhode Island lead paint case began in 1999. It culminated in February with a jury verdict requiring three companies to abate lead contamination in the state’s housing stock.
THE PLAINTIFFS’ HOTLIST A different sort of trial for plaintiffs The path gets rocky and steep Investors press their demands Getting inside a client’s head Novel strategy pays off big The Plaintiffs’ Hot List

The plaintiff’s team estimates that that project will cost between $1.7 billion and $3.5 billion. A fourth defendant, Wilmington, Del.-based E.I. du Pont de Nemours and Co., settled for about $12 million just before the trial. Rhode Island v. Lead Industries Association, No 99-5226 (Providence Co., R.I., Super. Ct.) Following discussions with state officials, the plaintiffs’ side concluded that lead paint contamination-which can cause neurological problems, especially in children-constituted a public nuisance and public health threat. The problem has affected at least 250,000 homes and at least 35,000 children within the last decade, according to Jack McConnell of the Providence, R.I., office of Motley Rice, which is based in Mount Pleasant, S.C. “It’s a problem society is forced to deal with,” said McConnell, the first-chair litigator for the state. “You find analogous cases across the country, in pollution and environmental cases. Love Canal in upstate New York was a public nuisance case.” The public nuisance doctrine imposes liability on parties that interfere with the health, safety, peace, comfort or convenience of a community. A plaintiff has to show that the defendants caused or contributed to something that harms the community. It need not show that their actions harmed particular individuals. The plaintiffs sifted through a century’s worth of documents and fought more than a half-dozen high-stakes procedural challenges before the Rhode Island Supreme Court and the U.S. Supreme Court during the four-month trial. The defense team for Sherwin-Williams Co. of Cleveland; Millennium Holdings LLC of Hunt Valley, Md.; and NL Industries Inc. of Dallas, has filed a post-trial motion to overturn the verdict, and promises an appeal if necessary. Atlantic Richfield Co., now part of London-based BP plc, was found not liable. Tort specialists at Thornton & Naumes, a Boston firm that has worked with Motley Rice on matters including Massachusetts’ case against the tobacco industry, played a support role in the lead paint case. It identified medical and science experts, prepared them for cross examination and helped state officials to produce the millions of pages of documents demanded by the defense. Everyone involved in causing the lead contamination problem-and not just the property owners-shared the responsibility to ameliorate the situation and prevent future lead paint poisoning, said Neil Leifer of Thornton & Naumes. “It’s time industry accepted the role it is legally required to,” Leifer said. “We borrowed that from what we learned in the tobacco litigation.” The public nuisance theory certainly presented challenges. Even the jury was initially deadlocked on the issue, said Don Scott, an attorney in the Denver office of Chicago-based Bartlit Beck Herman Palenchar & Scott, who represented NL Industries. What’s more, he said, the state never had to prove that any lead paint used in Rhode Island actually was manufactured by any of the defendants. “The public nuisance strategy is something that plaintiffs’ bar has been working on to circumvent the legal requirements for proving ordinary products liability claims like negligence or strict liability,” Scott said. “We think it’s dead wrong and it shouldn’t be used that way.” The ‘tobacco effect’ The state’s team of a dozen lawyers faced the intellectual firepower of 122 registered defense counsel and an unknown number of behind-the-scenes attorneys. Hurdles cleared by the plaintiffs’ team included the defense’s bid to have the judge recused four years into the case; its demand to depose all landlords and owners of homes built before 1978; and requests for thousands of children’s health records. The plaintiffs examined those health records with a fine-tooth comb to redact privileged information. “The depth and breath of this case can’t be exaggerated,” McConnell said. “The defendants asked for and got just about every piece of paper in state’s possession that had anything to do with lead.” For their own part, the plaintiffs collected millions of documents about the companies in a nationwide search of 25 public libraries and archives. “It became a procedural nightmare internally,” McConnell said. What that search produced, he said, was evidence that the companies knew that lead paint was poisoning children but “felt they could get away with it.” Some of the evidence was so over-the-top-suggesting indifference, McConnell said, to the plight of the poor and minorities most at risk-that the plaintiffs decided against presenting it at trial. “We feared the juries might not believe it. We were afraid of overkill, and that’s hard to say in a four-month trial.” In crafting its case, Motley Rice applied lessons it had learned while representing 26 state attorneys general against the tobacco industry during the 1990s. “You have to be concerned about the tobacco effect,” McConnell said. “When conduct about the tobacco industry became so public, people became immunized. We had to be careful [that] the jury didn’t come to expect [what the defendants did] as normal behavior.” The defense side is still fighting on several fronts. The companies have challenged the state’s right to force remediation on property owners, and are contesting the private lawyers’ contingency agreement with the state before the state Supreme Court. Motivated by a legal theory that would generate the largest attorney fees, Motley Rice “shopped this lawsuit around to many state attorneys general,” said Bonnie Campbell, a former attorney general of Iowa who served as spokeswoman for the defense. “From day one, we feel this case has been infected by that contingency fee agreement,” Campbell said. McConnell vehemently denied that Motley Rice shopped the case, countering that the firm doesn’t expect to recover all of the $8 million in hard costs it sank into the litigation. The agreement gives his team one-half of the usual one-third contingency fee. “We’re fortunate as a firm-we have devoted a lot of our money back into the practice, to be able to take on these kind of cases,” McConnell said. And for the plaintiffs’ team, the jury’s verdict has already validated its theory. “What we did was the highest and best use of litigation,” Leifer said. “We used litigation as preventative medicine.”

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