Horrible Verdict

In what we may look back on as one of the worst and most destructive jury verdicts of the decade, three paint makers were found guilty of selling lead paint back when it was, well, legal:

A Rhode Island jury today found Sherwin-Williams Co. and two other
paintmakers guilty of creating a 'public nuisance' by manufacturing
lead paint after it was found to be dangerous." If upheld, the verdict
will force the companies to contribute millions toward abatement of
existing paint; a judge will also consider demands for punitive
damages. The ruling, the first of its kind, is also expected to
encourage the filing of more suits against the industry

As Walter Olson points out, the suit was dreamed up by veteran law firms from tobacco and asbestos lawsuits, using bits of both litigation models:

The verdict is an unfortunate confirmation that the "tobacco model" of
mass tort litigation remains alive and well. In particular,
contingency-fee private counsel have once again managed to 1) dream up
a novel idea for litigation based on the idea that some category of
public expenditure is really blameable on long-ago sales of a product;
2) sell the idea of suing to public officials who agree to front the
action, and who thus provide (along with advocacy groups) a suitably
public face for the lawsuit; and 3) manage to get liability attributed
retroactively to businesses whose actions decades ago were plainly
lawful under the standards of that time.

The firm Ness Motley who is RI's partner in this, is, surprise surprise, the largest single political donor in the state.

The WSJ($) has more thoughts today about why this verdict is so bad:

There are so many screwy aspects to this case that
it's hard to know where to begin. The jurors heard no evidence about an
injured party, nor were they informed of any specific house or building
that constituted the "nuisance." As for the defendants, Judge Michael
Silverstein instructed the jury that it wasn't necessary to find that
Sherwin-Williams, NL Industries and Millennium Holdings had actually
manufactured the paint present in Rhode Island or that they had even
sold it there.

Oh, and did we mention that at the time the companies
may or may not have sold lead paint in Rhode Island it was an entirely
lawful product? "The fact that the conduct that caused the nuisance is
lawful does not preclude liability," Judge Silverstein said. Lead paint
was banned for residential use in 1978.

So why is this such a big deal?  One only has to look at the situation in asbestos to see the potential ramifications.  The asbestos mess began, sensibly enough I guess, with lawyers suing makers and heavy users of asbestos products into bankruptcy for the benefit of people seriously ill (though one can argue that most of these cases belonged in the workers comp. system, but workers comp. doesn't allow those juicy punitive damage payments that pay the fuel bills for the lawyers' Gulfstream V's).  Eventually, the asbestos mass tort morphed into lawyers suing any company with deep pockets that had even heard of the word asbestos for the benefit of tens of thousands of people who had never been harmed but only claimed to have been present in the same zip code as asbestos. 

Here is the problem with the potential lead paint mass tort:  It has skipped right to the asbestos end-game, bypassing the "helping people who were seriously harmed" stage and jumping right to the settlements for billions without proof of any related injury.  And for all the ubiquity of asbestos, lead paint was even more prevalent in its day.  Will Sears be bankrupted for selling lead paint?  Will auto-makers and homebuilders be bankrupted for using it?   And, separately, will any of the settlement money that flows to states really go to lead paint abatement, or will most go to general revenue, as it did with tobacco?

OK, so its clear why those of use who care about stuff like property rights and individual responsibility might be appalled at this decision, but you progressive public policy types should be appalled as well.  If this thing gets rolling, the country will end up diverting hundreds of billions of dollars to a problem, mainly childhood lead poisoning, that while not solved has really been greatly reduced over the past few years.  Just to get a sense of scale, for example, we are talking about far more money potentially focused on lead paint than the total spent today publicly and privately on AIDS and cancer research combined.  Totally insane.

  • http://honestpartisan.blogspot.com honestpartisan

    I think you need to put the problem in a little bit of context. Lead paint causes brain damage in kids. They don't get it from eating lead paint chips, they get it when the walls of a house deteriorate and the dust gets on furniture and floors, which kids touch before they touch their hands to their mouths.

    The lead paint industry fought very hard against efforts to regulate its use. The fact that it wasn't banned until 1978 doesn't exonerate it; instead, it's testimony to the political pull of lead paint manufacturers who could have taught the tobacco industry how to concoct arguments against even acknowledgement that a product was harmful.

    Even though lead was banned a long time ago, all structures built before 1978 still have lead in the walls which can hurt kids if the walls start to deteriorate. That's because additional coats of paint get added to interiors; what's under it doesn't get removed. The only way to really remove it is to do a lead paint abatement, which is a very costly and difficult process. So costly and difficult that anti-lead paint advocates usually don't think it should be done unless the paint on the wall has deteriorated; otherwise, it's not worth it to kick up more dust, which inevitably happens in an abatement.

    I don't have a strong opinion about whether mass torts are the best way to address this problem or not, but like alcoholism, it would be nice to admit that there is a problem and that the cost is going to be bourne by someone -- paint manufacturers who made a dangerous product that they (successfully) fought for years to keep on the shelves, or kids who get injured through no fault of their own.

  • http://dfriedman.typepad.com Dave

    Whether lead paint causes brain damage is irrelevant to the larger point that, at one time, selling it was legal. Penalizing companies for selling a legal product is nothing more than extortion (which, itself, is allegedly illegal.)

    What was it that Shakespeare said about the lawyers? Make like Metallica and Kill 'Em All?

  • sid

    I feel compelled to respond to the comments made by honestpartisan...
    If you live in a home where the paint is so deteriorated that it is turning to dust, how is that the fault of the paint companies who may or may not have sold it? Lead only becomes a danger when it is ingested and yes quite often that is a result of children eating paint chips. Dust might also be a source but as you said the coating would be in a deteriorated state and I was unaware that any paint company ever sold any product advertised as never needing to be maintained especially for 60 years! I wish I had known that it was a paint manufacturers responsibility to maintain the paint in my home (built in 1912) prior to the investment of my own sweat, time & money when repainting it inside and out.
    BTW, at least one of the companies found liable in this suit ceased producing lead based paint for architectural use prior to 1947, so 1978 is not a reasonable or justifiable date except to say that the government banned it then. Also, lead paint was specified and used not only by homeowners and landlords but...yes you guessed it, government entities as well.
    All of the bits and pieces are really irrevelant when you look at one fact, paint is not made to be ingested and these companies are being held responsible for the mis-use of their product. It is also interesting to note that the state of RI can not and has not proven that the "poisoning" of children in the state is linked solely to lead paint. There are a number of other sources of lead that were completely disregarded as potential contributors, are they next? This decision warns of huge problems for our society and I hope that it is quickly corrected by the courts.

  • Bob Smith

    Isn't there a federalism issue here (to the extent that it isn't yet dead)? If it isn't necessary to hold that the paint in question was manufactured in RI or sold by the defendant in RI, isn't RI punishing alleged tortious conduct that occurred outside its jurisdiction?

  • Max Lybbert

    I would prefer we get rid of the uncertainty in business. Either explicitly state "you can not be sued for selling the following products provided you ..." or state "by selling *any* product you assume all risks regarding its inherent dangerousness" (i.e., strict liability). From what I can tell we currently say "to sell this product you must follow these steps, but that's not any kind of defense if you later get sued."

    For instance, cars must have certain safety equipment, meet government crash tests, etc., but that doesn't provide any shield for car makers when lawyers think up a new legal theory of liability. Either we need to give those automakers qualified immunity, or we need to make them entirely responsible so they've got notice and can take whatever steps they consider worthwhile and cost-effective (including not selling cars, or making cars that automatically follow the speed limit, etc.). I vote for the first option (qualified immunity), but I have to admit that the second option (strict liability) exists.

  • http://honestpartisan.blogspot.com honestpartisan

    A couple of responses:

    First of all, the fact that something was legal alone doesn't mean that you're exempt from civil liability, in particular if the paint companies knew it was harmful and marketed it anyway.

    Second of all, the deterioration of paint is fairly foreseeable. It happens when there are leaks or settling. Structures are finite and fragile, and an expectation that paint will just remain intact isn't reasonable. So when that happens and lead dust gets around, it's not "misuse" of their product.

    The 60-year thing raises some statute of limitations questions, which may very well be a valid defense. I don't know that much about the case.

    Government entities (like public housing projects) have been found liable in tort for the presence of lead paint.

    Lastly, the question of whether lead paint in homes causes brain damage is a causation question; in order words, the burden is on the plaintiff to prove that issue you're raising a dispute about. If you're correct about the dispute in a particular case, then I would agree that no liability should attach.

  • sid

    points taken, but if deterioration of paint is foreseeable and structures are finite and fragile how does the proper maintenence of any structure become the responsibilty of a manufacturer who provides a product used for aesthetic not structural value. The mis-use that I was refering to was the ingestion of a product designed for other use.

    I agree, that you would think a statute of limitations should be in play here (it's 5 years for rape according to Law & Order, ha) but it would appear that it is not a factor here.

    As far as the government or any property owner being liable in this case, it is not in play. The play here is to divert all responsibility to the manufacturers, crazy huh?

    Causation, from what I have read about this case was never required. The causes of elevated lead levels have never been proven nor was any evidence brought forth to prove what company provided paint when & where.

    A couple of other items that are less than clear to me, the original suit listed 8 paint companies, this re-trial only listed 4 defendents (one of which the jury found not liable, quite curious). Another of the original 8 paid 12m to buy a free pass from the state, but what happened to the other 3?

    Please note that I am not a lawyer but it is my firm belief that common sense has taken an extended vacation in our country. I also thought that the tobacco suits were a joke because I do believe in personal responsibility.

  • Max Lybbert

    Remember that causation, like anything else in a civil trial, just has to be proven to the "preponderance of evidence" standard, i.e., more likely than not. That's how John Edwards was able to win lawsuits against hospitals for not doing Caesarians when Edwards would've recommended one, even though the science around the question wasn't settled, and later determined that C-sections wouldn't have done any good.

  • http://www.donothaveone.com TC

    "Whether lead paint causes brain damage is irrelevant to the larger point that, at one time, selling it was legal. Penalizing companies for selling a legal product is nothing more than extortion (which, itself, is allegedly illegal.)"

    If I recall i can still legally purchase tobacco products in the USA right?

    Careful:
    "Isn't there a federalism issue here (to the extent that it isn't yet dead)? If it isn't necessary to hold that the paint in question was manufactured in RI or sold by the defendant in RI, isn't RI punishing alleged tortuous conduct that occurred outside its jurisdiction?"

    Such thinking is what really started the civil war in this country!

    "I would prefer we get rid of the uncertainty in business. Either explicitly state "you can not be sued for selling the following products provided you ..." or state "by selling *any* product you assume all risks regarding its inherent dangerousness" (i.e., strict liability). From what I can tell we currently say "to sell this product you must follow these steps, but that's not any kind of defense if you later get sued.""

    The attorneys running your congress, legal system, and such will never allow such. I mean where would they be able to go for unreasonable fees? You just ask way too much. :)

    "That's how John Edwards was able to win lawsuits against hospitals for not doing Caesarians when Edwards would've recommended one, even though the science around the question wasn't settled, and later determined that C-sections wouldn't have done any good."

    Oh nice that you point out one of the biggest scoundrels in the nation for abuse of the legal system! Made millions and millions off of those suits, his clients probably got pennies on the dollar. He spins a different tune today.

    You can bet he will NEVER support tort reform in any form!

    He cares not how many he puts out of work due to the bankruptcies he causes. Could care less about those people, probably figures they had it coming for working for such a vile company that dared to treat people in need of medical attention.

    FARK him and 100% of those like him!

    I figure if an attorney desires to run for a public office outside of county or state attorney, they can give up the bar the day they sign up as an candidate! Sure they will make excuses about all sorts of things, but every one of them will spout their desire to be public servant, fine, the day the file, they give it up, The day they leave office they can REtake the bar!

    ciao

  • Russ45esq

    One only has to read some of the comments here to realize how much ignorance exists about lead poisoning.

    Did you know that growing research is pointing to the fact that lead poisoning is what may have brought down the Roman empire, as lead was commonly used for plumbing in Rome. The periodic table symbol for lead is pb (plumbus) latin for plumbing.

    It was just conclusively proven through DNA hair follicle evidence that in fact Beetohven's illness and subsequent death was caused by lead poisoning.

    Ben Franklin wrote extensively about the fact that lead was a deadly poison, yet in the face of knowledge since antiquity that lead was a deadly poison, these paint manufacturers, and Our government (most likely through lobbying) allowed, and promoted its use, shameful, criminal

    To those who think this is a "ridiculous lawsuit" did you know that in 1908 Australia banned lead paint? And that paint companies KNEW the dangerous propensities of their product, but yet continued to sell it?

    Fast forward to the 1920's. Lead Paint was banned in Europe in 1921. I was fortunate enough to be privy to evidence that was presented during the RI v. Paint Manufacturers suit.

    There is a fairly large amount of documentation, detailing the Paint companies KNEW they were selling a lethal product, in which their internal counsel was pleading with them to use alternative formulas which excluded lead, and were feasible, and every bit as functional as the lethal lead formula.

    What do you think the Paint Manufactuers reponse to this was? Internal documents SHOW that not only did the paint companies not discontinue the sale of lead based paint, these manufacturers actually were instructing their personnel to "go on the offensive" to stop the attack on our product".

    How do you think they did this? with obituaries piling up of deaths from lead paint, these companies has the audacity to undertake advertising campaigns that stated that lead was "good for your health"

    The RI Attorney General sued under a Public Nuisance theory, which doesn't require "scienter" (knowledge) on the manufacturers part, but when you see how insideous these greedy corporations were, its just icing on the cake

    I read here where there are those that say that, why doesn't the state just keep on top of enforcing maintenance, or lanlords just have to maintain the paint.

    Truth is its costs ALOT of money to maintain lead paint programs, as well as maintenance, which would not have to be bourne by state tax payers, were it not for the careless negligent acts of these manufacturers decades before,

    Yes Lead Paint hasn't been sold since 1978 in America, but on many streets in Providence RI, it might as well still be 1950, because the paint that was put on decades ago, still is there, and unfortunately it is killing our nations kids to this day.

    Before those of you here make comments, do the research, you may find that the lead paint issue, could well become one of the worst environmental disasters in the history of America.

    Please debate me on this topic, there is not one thing any of you can challenge me on, as there is NOTHING to debate, these criminals are guilty and should be taken to task for ruining the lives of thousands of children, money can never make up for what they have done to the world.