New Hampshire Judge Clears Way for Enhanced Damages in Drunk Driving Cases

March 3, 2004
Rhode Island Judge Rules Jury Retrial in Lead Paint Industry Suit
A jury will hear the retrial of a landmark lawsuit against the lead paint industry, a Rhode Island judge ruled.

Superior Court Judge Michael Silverstein rejected the state’s motion to have a judge, rather than a six-person jury, hear the case. The first trial against eight corporations that manufactured lead-based paints for allegedly creating a public nuisance ended with a hung jury in 2002.

It is “the constitutional right of defendants to have issues of fact determined by a jury,” Silverstein said, citing the state constitution that took effect in 1843.

Attorney General Patrick Lynch said the state is considering whether it will appeal the ruling to the state Supreme Court.

Child advocates, government officials and financial experts around the country have been following Rhode Island’s efforts to force the corporations, including Cleveland-based Sherwin-Williams Co., to clean up contamination from the lead-based paints they made and marketed two generations ago.

The state claims the companies’ products poison nearly 3,000 Rhode Island children each year. The companies have argued the state was spreading fear by exaggerating its case.

In pretrial arguments, state attorney Fidelma Fitzpatrick said that while everyone has a right to a trial by jury, only a judge has the power to grant the wide range of relief sought by the state to clean up the paints, repay past governmental expenses and educate the public.

Laura Ellsworth, representing Sherwin-Williams, argued that the state is basically seeking damages, meaning the companies have a right to a jury.

After the judge’s decision, John Tarantino, representing Atlantic Richfield, said it was “very strange” that the state would seek to eliminate a jury, when the case involves a public health hazard.

John Tarantino, representing Atlantic Richfield, also said the paint companies deserve the protection of a jury trial.

“This is a sovereign with a voracious appetite for a victory,” he said. “This is a sovereign who does not want to try this case to a jury, plain and simple.”

The trial is scheduled to start April 5. The first trial took seven weeks.

The other defendants are the Atlantic Richfield Co., NL Industries, American Cyanamid Co., Cytec Industries, E.I. du Pont de Nemours & Co., ConAgra Grocery Products Co. and Millennium Inorganic Chemicals Inc.

Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

A judge or jury in New Hampshire can decide whether to award enhanced damages to a man injured by a drunken driver, a state Superior Court judge has ruled.

Most states allow enhanced damages in civil lawsuits against drunken drivers, and “New Hampshire is out of step with most courts in this regard,” Judge Edward Fitzgerald ruled.

“The general consensus is that driving while intoxicated is an evil that should be restrained by the use of enhanced or punitive damages,” he wrote.

In past decisions, the state Supreme Court has said that enhanced penalties can’t be awarded just because a driver was drunk.

But Fitzgerald said the high court left the door open for enhanced damages if the plaintiff can show an intoxicated driver acted maliciously, wantonly or with reckless disregard for the lives of others.

Fitzgerald said he would allow Lincoln Hanscom and his wife, Carol, to make that argument in their Merrimack County Superior Court lawsuit against Linda O’Connell, who rear-ended Lincoln Hanscom’s car in March 2003.

O’Connell had asked Fitzgerald to dismiss the portion of their lawsuit seeking enhanced damages.

Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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