Former Lead Paint Makers Seek Dismissal of R.I. Case

By | August 31, 2006

Lawyers for three former lead paint manufacturers found liable for creating a public nuisance asked a judge Wednesday to dismiss the state of Rhode Island’s lawsuit against them or order a new trial, saying the state failed to provide enough evidence to support the verdict.

A jury in February found three companies — Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC — liable for creating a public nuisance by manufacturing and selling a toxic product.

The state says the verdict could cost the companies billions of dollars to clean up lead paint contamination in Rhode Island, though a judge has not yet decided how much, if anything, the companies must pay or even whether to uphold the jury’s judgment.

Lawyers for the companies, speaking before a crowded courtroom Wednesday, said the state failed to show that lead pigment or paint manufactured by their clients or their predecessors was ever sold in Rhode Island or significantly contributed to any public nuisance here.

But Fidelma Fitzpatrick, a lawyer for the state, said the companies were looking at the evidence in a vacuum and that the jury had already heard these same arguments and rejected them. She said the evidence showed that each of the defendants had a presence in the state.

“They lost their jury trial and now what they’ve done is come before you and ask you to rehear their closing arguments and side with them this time,” Fitzpatrick said.

Don Scott, a lawyer for NL Industries, said it was not enough for the state to suggest that the company at some point sold some type of lead product somewhere in Rhode Island. He said there was nothing to connect the companies’ activities to the state’s lead paint problems.

“The record of any kind of nexus is thin, at best, as to NL or the other two defendants,” Scott said. “I would suggest worse than thin, it is legally insufficient.”

The lawyers said the state promised evidence before the trial that never materialized and that jurors were forced to make a series of inferences to reach their verdict.

Mickey Pohl, a lawyer for Sherwin-Williams, said the state tried to suggest that because the companies manufactured lead pigment and paint nationally that their products must therefore have ended up in Rhode Island. He argued that the state should have presented evidence “party by party, defendant by defendant.”

“The collective behavior is not a shoehorn by which the state can say its verdict can be sustained against Sherwin-Williams,” Pohl said.

But Fitzpatrick said there was uncontroverted evidence, established through testimony during the trial, that each of the three defendants or their predecessors sold and promoted lead pigment in Rhode Island.

She also said jurors were able to distinguish between the actions of the defendants, noting that one of the companies sued — Atlantic Richfield Co. — was found not liable.

“I don’t think that the will of this jury can and should be ignored,” she said.

The companies also contend the state misrepresented the true extent of childhood lead poisoning in Rhode Island, saying a substantial decline last year in the number of newly poisoned children suggests the state’s lead poisoning problem is not a public nuisance.

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