Lawyers in Rhode Island Lead Paint Case Argue Court Costs

By | August 18, 2008

A lawyer for Rhode Island said Friday that three former lead paint companies should not be allowed to recoup costs from a nine-year legal fight with the state that ended last month in their favor.

The state Supreme Court in July overturned a landmark jury verdict that found Sherwin-Williams Co. and two other companies responsible for creating a public nuisance. The three companies now want to recover they money they spent defending the lawsuit, which was filed in 1999, though they have not specified the precise amount.

Assistant Attorney General Neil Kelly said at a hearing Friday that taxpayers would be burdened if the state had to repay the defendants the cost of the litigation. He said the lawsuit was filed in good faith and that it was not fair to punish Rhode Island citizens just because the jury verdict was reversed.

“There is no doubt that the lawsuit was not to harass or cause the defendants problems, but rather, it was to get them to participate in a problem that was being confronted by the people of this state,” Kelly said.

The defendants, however, cite a Rhode Island statute that allows the winning side in lawsuits to seek non-attorney costs once a case is over.

Superior Court Judge Michael Silverstein did not immediately rule on the defendants’ request.

The companies have so far asked to be reimbursed for the more than $240,000 they say they spent on two public health experts who were appointed by the court to evaulate a cleanup proposal from the state. That proposal called for the companies to spend roughly $2.4 billion cleaning hundreds of thousands of lead-contaminated properties.

But the defendants also expect to submit a significantly larger bill for overall court costs such as depositions and filing fees. They have not said how big that bill will be.

The state has calculated that it spent about $1.9 million on the case, including on legal research, copying and trial exhibit expenses, deposition costs and witness travel costs.

The state has said sovereign immunity protects it from paying for litigation costs, but lawyers for the companies said the state gave up that protection once it filed the lawsuit.

“The attorney general made a choice to accept the costs associated with this lawsuit, when he filed it,” Joseph Cavanagh, a lawyer for Sherwin-Williams, said in a statement Friday.

Cavanagh suggested the costs should be borne by the private law firm, Motley Rice, that the state hired on a contingency-fee basis to try the case.

Jack McConnell, a Motley Rice lawyer who tried the case, said Friday it was “preposterous that these corporations that a jury found poisoned tens of thousands of kids in our state would attempt to get money from those who tried to hold them responsible.”

He said the firm agreed to bear the costs of trying the case, but not the defendants’ “excessive costs of defending themselves.”

The Supreme Court’s decision last month reversed a first-in-the-nation jury verdict against the lead paint industry.

A Rhode Island jury in February 2006 had found Sherwin-Williams, NL Industries Inc., and Millennium Holdings LLC liable for creating a public nuisance by having manufactured toxic lead pigment for use in paint.

But the court, in throwing out the case, ruled that the defendants did not have control over their product after selling it.

An earlier trial of the lawsuit ended with a hung jury in 2002.

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