Citing ‘Broken Promises,’ Paint Firms Seek New Trial in R.I.

April 20, 2006

Claiming the verdict involved a series of “broken promises by the state which resulted in a flawed trial and an erroneous verdict,” three defendants in the Rhode Island lead pigment case have asked the court to enter a judgment in their favor or, failing that, to order a new trial.

The motions were filed by defendants NL Industries, Millennium Holdings LLC, and the Sherwin-Williams Company.

Superior Court Judge Michael Silverstein deferred ruling on some of these motions, which were made orally before the case was given to the jury.

In February, a Rhode Island Superior Court jury found the three former lead paint manufacturers liable for creating a “public nuisance” by selling lead paint that poisoned children. The jury decided that the firms must clean up contaminated paint in the state, which some officials have said could cost as much as $3 billion.

Judge Silverstein has since ruled that the companies should not be liable for punitive damages but the court has yet to decide what the firms will have to do and spend for cleaning up.

In their latest appeal to Silverstein, the defendants argue that there was no evidence at trial that the companies contributed in any way to a public nuisance in Rhode Island. The companies say the state made promises to the judge about the evidence it would present, but the state failed to live up to its promises. The state’s promises are not evidence, the defendants said, and the case should be dismissed for lack of proof.

“The result is that three, out of many historic manufacturers, were held liable for harms that were scientifically unknown and unknowable at the time of manufacture — all without showing that a single drop of lead pigment present in Rhode Island today was, in fact, made or distributed by any of the defendants,” the filing said.

The defendants said the state put forward a “fictitious” public nuisance construct that went beyond the parameters of Rhode Island law and basic principles of justice. They maintain that erroneous jury instructions stripped away every defense argument, leaving the jury with no choice but to enter a verdict for the state.

The hypothetical “collective nuisance” construct “created a proceeding that was devoid of real facts and real properties,” the defendants argued.

The filing added, “[t]he Court misapplied public nuisance law to impose a form of absolute liability unknown to the law — in Rhode Island or anywhere. The law created in this case holds that if a company made an ingredient used in a product somewhere, sometime, it is responsible for the product’s misuse and lack of maintenance anywhere, anytime.”

Specifically, the defendants believe the trial violated fundamental
notions of justice and due process and they point to a number of what they allege were errors at trial:
* The jury did not have to find that the defendants had done anything wrong.

* Opening and closing arguments given by counsel for the state were so inflammatory and prejudicial that a new trial is necessary.

* By presenting a fictitious public nuisance theory, the state defeated defendants’ efforts to join property owners, conduct property-specific discovery, and hold property owners responsible for not maintaining their properties. The court compounded the error by failing to instruct the jury about the responsibility of property owners to properly maintain their property.

* Each defendant should have had a separate trial. The state consistently blurred evidence among defendants, resulting in an unfair trial to each.

* The state evaded a dispositive motion by asserting that it was not relying on a “market share” liability theory. At trial, however, the state presented national “market share” data rather than any proof that the defendants’ lead pigments are present in Rhode Island today and contributing to an alleged public nuisance. The use of market share data conflicts with Rhode Island Supreme Court precedent and doesn’t show that any company was a substantial factor contributing to the alleged nuisance.

* The state defeated numerous summary judgment motions and succeeded in striking defendants’ affirmative defenses by assuring the court that this was not a product liability case. The state then turned around at trial and presented a product liability case, stripped free from any product-related defenses.

* The state impermissibly sought to hold defendants liable for exercising their First Amendment rights to belong to trade associations, express their opinions and communicate with public officials.

* The state convinced the court to delay its agency ruling for almost a year, promising additional evidence to legitimize the state’s use of Lead Industries Association (LIA) evidence. No such evidence ever materialized at trial. It was only after the LIA information had been conditionally admitted that the state conceded that it had no further evidence, and the court finally ruled in defendants’ favor. The incurable evidentiary damage, however, already had been done. The state then compounded this error by arguing “LIA” and agency issues during its closing arguments.

* The state defeated summary judgment on the Manufacturer Immunity Act by contending that this case was not about the manufacture or sale of a product. But the state presented a case at trial premised solely and exclusively on evidence concerning manufacture and sale of a product.

* The state failed to connect the evidence it promised — such as defendants’ advertising, marketing or sales activity — to the state of Rhode Island.

Source:, a site sponsored by the manufacturers involved in lead litigation.

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