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’sÂ 2006 decision.Â (Full decision from 7/1/2008)Â Â This early rulingÂ was a result of the longest civil jury trial in Rhode Island history, with theÂ 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.Â
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.Â Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead.Â But, however grave the problem…public nuisance law simply does not provide a remedy for this harm.”
This tells meÂ that we need some better laws so that we can hold peddlers of dangerous productsÂ accountable for their actions.Â 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 theÂ 1930’s the adverse health consequences that would be caused by their actions, butÂ they didn’t care and greed won out.Â Â The R.I. Supreme Court’s decisionÂ gives a free pass to the lead industry’sÂ despicable behavior.Â Â Â Â Â Â
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 problemÂ is identifying and holding accountable theÂ peddlers of lead-based paint?Â 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:
“Weâre clearly very disappointed.Â 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,Â RI Court Throws Out Jury Finding in Lead Case”
In contrast, a lawyer for Sherwin-Williams said:
“Todayâs ruling is a landmark victory for common sense and for responsible companies that did the right thing.Â The responsibility of making sure children arenât 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.Â 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.Â If these three elements are met, the State had to demonstrate that the defendant caused the public nuisance.