Saturday, June 9, 2007

Lead Paint Litigation Update

Time for an update of the various lead paint suits winding their way to obscurity throughout the US.
The main defendants are Sherwin Williams (SHW) and NL Inustries (NL). I have taken this post in it's entirety from Jane Genova's Law and More since, as I have said here numerous times before, investigating the legal aspect of lead paint litigation begins and ends with Jane's blog.

"These updates come by way of the monitoring, research and interpretation of LexisNexis [TM] Mealey's Litigation Report. This Mealey's briefing is focused totally on the lead issue. I have radically downsized the content of the original report. Also I have added my own commentary.

Documents associated with these developments are available from Mealey's at or



1. Defendants Sherwin-Williams, NL Industries and Millennium Holdings filed a joint objection to the state's recommendation for special master of Mary Jean Brown, MD of the U.S. Centers for Disease Control and Prevention. The reason, say the defendants, is that it appears "from available information [Brown] has had from any years been involved in reviewing (and to some extent shaping) the evidentiary facts regarding childhood lead poisoning and lead abatement in Rhode Island." The person functioning as special master, of course, should have no ties to any one party in an adversary proceeding.

2. On June 4, Superior Court Judge Michael Silverstein heard from plaintiff and defendants about their recommendations for a special master. He did not indicate when he would rule on this.

3. On May 16, plaintiff filed proposed abatement schedule indicating it would file a detailed plan by Sept. 15. Defendants have 60 days to file objections to the plan. The plaintiff also proposes defendants shall pay all fees and costs incurred by the function of special master.

Appeal to RI Supreme Court:

Both the plaintiff and the defendants had filed an appeal. On May 21, the RI Supreme Court issued an order and briefing protocol for the defendant paint companies.

The schedule requires the completion of the official transcript, certification of the original papers and exhibits and docketing of the matter in the RI Supreme Court. As we have been informed previously, this could take months. Sources predict this might not be done until early 2008.

After that, there will be a conference with plaintiff and defendants to work up a schedule for filing briefs. When that date is set and the briefs have been actually filed, then a date will be made for oral arguments before the Court.

Since the contingency issue has already been fully briefed, there is no additional filing related to this one matter. The other issues will be briefed in five phases:

* Appellants' briefs
* Appellees' briefs
* Amicus briefs
* Reply briefs
* Replies to amicus briefs.


City of Milwaukee v NL Industries. Plaintiff rested its case on June 6. The jury returns June 8. Then the defendant will present its case. Since as part of the defense teams in the RI lead paint trial, NL Industries lead attorney Donald Scott didn't present a defense, lead-paint watchers are curious who he will call as witnesses and what strategies he will use.

Steven Thomas et al. v. [Many]. On May 10, the judge ruled the defendants could compel Steven Thomas' guardian ad litem to provide deposition testimony, subject to limitations. Defendants argue exculpation defense should be allowed. Atlantic-Richfield claims no liability since its lead carbonate was not sold in Milwaukee.

Called for short "The Thomas Case," this upcoming trial is viewed as the most severe test the former lead paint industry and its former trade association Lead Industries Association (LIA) have encountered. Part of the challenge is how the legal concept of liability is being approached because of a WI Supreme Court ruling.


In County of Santa Clara, et al. v Atlantic Richfield Co, et al. the judge issued an order staying the case until the appellate review.


The state Supreme Court denied Sherwin-Williams' motion for a rehearing and the case [a personal injury one] will go to trial.


SS 117 Veto. The state Supreme Court, which heard oral arguments on May 1 regarding if Senate SS Bill 117 had become a law because of the former Governor's not vetoing it, will probably rule by the end of June.

Preemptive Strike by Sherwin-Williams. On May 14, the city of Columbus and other cities in OH filed a brief seeking to prevent Sherwin-Williams from being allowed to take "the extraordinary step of prohibiting the defendants from engaging legal counsel of their choosing in pending state court claims." It also requested a dismissal of Sherwin-Williams' request for a preliminary injunction against litigation. The cities contend that this filing by Sherwin-Williams represents an attempt to evade responsibility for creating a public nuisance."

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