July 2, 2008 The Pump Handle 3Comment

The State of Rhode Island’s efforts, which began in 1999, to force lead-paint manufacturers to clean-up contaminated homes received a mortal blow when the State’s Supreme Court reversed a lower court’s 2006 decision.  (Full decision from 7/1/2008)  This early ruling was a result of the longest civil jury trial in Rhode Island history, with the decision going against the defendants Sherwin-Williams, NL Industries, and Millennium Holdings, holding them liable for creating a public nuisance by selling lead-based paint. 

The R.I. Supreme Court said:

“We do not mean to minimize the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning.  Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead.  But, however grave the problem…public nuisance law simply does not provide a remedy for this harm.”

This tells me that we need some better laws so that we can hold peddlers of dangerous products accountable for their actions.  As David Rosner and Jerry Markowitz masterfully document in their paper “Cater to the Children” and their book Deceit and Denial, the lead industry knew by the 1930’s the adverse health consequences that would be caused by their actions, but they didn’t care and greed won out.  The R.I. Supreme Court’s decision gives a free pass to the lead industry’s despicable behavior.      

The R.I. Supreme Court also tried to hide behind the popular “judicial restraint” philosophy, going so far as quoting from U.S. Supreme Court Justice John Roberts’ pre-confirmation questionnaire:

“judges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.” (emphasis added)

What if the society’s problem is identifying and holding accountable the peddlers of lead-based paint?  That isn’t a problem for the judicial system?

John J. McConnell Jr., who represented the State in the case against the paint makers said:

“We’re clearly very disappointed. Children in Rhode Island will continue to be poisoned by lead in paint and the companies that put the poisonous paint in Rhode Island have no responsibility for cleaning up the mess that they created in the first place.” (NYTimes, RI Court Throws Out Jury Finding in Lead Case”

In contrast, a lawyer for Sherwin-Williams said:

“Today’s ruling is a landmark victory for common sense and for responsible companies that did the right thing.  The responsibility of making sure children aren’t exposed to lead paint remains squarely on property owners.”

In the R.I. Supreme Court’s 4-0 decision, the justices ruled that the lower court erred in its application of the State’s law of public nuisance.  Specifically, the State had to demonstrate the presence of three elements: (1) an unreasonable interference; (2) with a right common to the general public; (3) by people with control over the instrumentality alleged to have created the nuisance when the damage occurred.  If these three elements are met, the State had to demonstrate that the defendant caused the public nuisance.

News articles about the decision include the Providence Journal (story here) and ABA Journal (story here).

3 thoughts on “Rhode Island Supreme Court reverses lead paint verdict

  1. From what I have read here and elsewhere, this is a very encouraging decision by the Court. It reverses a misuse of the law. The fact of the matter is judges do not have a commission to solve society’s problems, If there is a social problem it is the duty of to pass laws though the law making process, not to create law from the bench.

    In the instant case the application of public nuisance law is clearly a matter of judicial activism. To use this law against the paint manufactures suggest that there was no proper use for lead-based paint. Even if the dangers of lead paint were understood at the time, there were still conditions where the performance of the lead-based product strongly recommended it use.

    In the real application of products risks are taken. In some cases the risks are small in other cases there are larger. In some cases the risks are known and understood, in other cases the risks are not understood.

    The only way for the paint manufacturer to be held liable in court would seem to require the application of the gross / willful negligence laws. This would be a much higher burden for the plaintiffs to make, but is what the law demands.

    I would contend that lead paint, mercury dental fillings, and other products which in time were found to have down sides do not qualify as negligence. Mercury filling saved a lot of peoples ability to eat normally and lead paint protected a lot of buildings over the years.

    If this discussion is about science, then the ability for

  2. Scott,
    I would encourage you to read articles in the public health literature which document how early the lead industry and paint manufacturers knew of the dangers to children from exposure to lead paint. They intentionally included white lead in their product and intentionally marketed it as health-improving and more sanitary, when they knew the complete opposite was true. Here’s an article from 1904.


    It may be true that lead-based paint on bridges and other outside structures served a purpose in their time, but that isn’t what this case was about—this was about lead exposure in older homes from INTERIOR and exterior applications. This case is about forcing the entities responsible for creating this hazardous pollution to clean it up—-that burden should not fall on the government or the homeowners or landlords.

  3. I agree with Scot that the Rhode Island Supreme court reversed a misuse of “public nuisance law”.

    The Rhode Island legislature, through its statues has placed the burden of responsibility for the maintenance of lead pigmented paint on the property owners. This is because it is the property owner and not the paint manufacturer that is in “control” of the product and thus responsible for the maintenance. As stated in the Rhode Island Supreme Court opinion:

    “[T]he General Assembly has recognized defendants’ lack of control and inability to abate the alleged nuisance because it has placed the burden on landlords and property owners to make their properties lead-safe” (State v. Lead Industries Association, Inc., et al; http://www.courts.state.ri.us/supreme/publishedopinions2007-2008.htm.

    It should also be noted that, according to the Rhode Island Health Department, Rhode island has dramatically reduced its lead exposure incidence rate from 6.6% in 1998, the year before this litigation was first filed, to 1.3% in 2007. This dramatic decrease in the was not the result of the litigation, but rather increased public awareness.

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