Lead Paint Litigation Update

The following is courtesy of Jane Genova's Law and More, the leading Lead Paint Litigation blog in existence.

Companies effected Sherwin Williams (SHW), DuPont (DD) and NL Industries (NL)



These are excerpts from Lexis Nexis Mealey's Litigation Report, Volume 16, Issue #11, September 2007. Documents associated with the legal matters discussed are available from Mealey's or by contacting James Cordrey, Editor, Lexis Nexis Legal News, James.cordrey@lexisnexis.com, 610-205-1125.

DISTRICT OF COLUMBIA ATTORNEY GENERAL SUES LANDLORDS

On August 16, Linda Singer, Attorney General for the District of Columbia, filed the last of 12 lawsuits in D.C. Superior Court against landlords for failure to abate lead-based paint hazards. These sought injunctive relief. Those health hazards had been discovered during Health Department inspections.

Enforcing laws against landlords has been what the former lead paint industry has been advocating for about two decades. Most states and cities already have those laws on the books. However, they are frequently not enforced. It could be effective for tort reformers to create a formal study of what factors mitigate against enforcement.

SANTA CLARA COUNTY, CALIFORNIA CONTINGENCY ARGUMENTS CONTINUE

Santa Clara County, which is appealing Judge Jack Komar's April 4th ruling against the use of contingency in public nuisance litigation, argues that federal law doesn't mandate that government attorneys be absolutely neutral, even in criminal matters. It goes further in contending that attorneys participating in public nuisance should be held to the same standard as a criminal prosecutor. According to California law, it claims, criminal prosecutors are not recused, absent showing actual bias which could deprive defendant of a fair trial.

In addition, the county on August 14 filed an opposition to defendant ARCO's request for judicial notice. The county contends that ARCO failed to follow rules of procedure in doing so.

Meanwhile, amicus curiae briefs are being filed by organizations supporting Judge Komar's ruling. Those organizations include the U.S. Chamber of Commerce, the American Tort Reform Association and, most recently, the American Chemistry Council. Essentially the amici argue that contingency arrangements with government entities are "suspect," unconstitutional and violate legal ethics. In addition, those arrangements often cause conflicts of interest, excessive fees and a "revolving door" which reduces the public's faith in government.

Since California is a trend-setting state which has an activist attorney general Jerry Brown this contingency battle is being closely watched. If the plaintiff wins its appeal then the door is opened for other public nuisance litigation, such as global warming, to move forward on a contingency basis.

OHIO SUPREME COURT AMENDS AUGUST 1 RULING ON "117," ALLOWING FILING OF REFERENDUM AGAINST EXTENSION OF PUBLIC NUISANCE TO LEAD-PAINT LITIGATION

A divided Ohio Supreme Court allowed opponents of "117" to try to obtain enough signatures on a petition to put the matter to the voters in 2008 as a referendum. The deadline for those signatures in October 30th. If voters eventually say no to this tort-reform measure, then the former lead-paint industry can be sued by the state for causing a public nuisance. This could again give momentum to such suits in other states and cities. The "117" opponents are positioning their campaign as one for consumer rights.

CITY OF MILWAUKEE PRESENTS ORAL ARGUMENTS FOR CHANGE OF DEFENSE VERDICT OR NEW TRIAL

On September 6th, the plaintiff City of Milwaukee gave oral arguments that the defense verdict should be changed or a new trial granted. One primary argument focused on jury instructions. Defendant NL Industries (NL), of course, argued against this, contending that the court properly instructed the jury that Milawukee was required to prove that its conduct was intentional and unreasonable.

A decision is anticipated by the end of September. If the judge does not grant the city's request, sources say an appeal is certain.

This litigation, though, is small doings compared to the upcoming "Thomas" trial which can set traditional liability concepts on their ear. All business, not only the former lead paint industry, is watching how this plays out. Opening arguments start October 4. A combination of Wisconsin Supreme Court rulings and Governor Doyle's veto of tort reform had made this state as potentially a hot zone for anti-business litigation as California. Some contend "Thomas" could be more significant in its implications for business as well as the lead paint industry than has been the infamous Rhode Island Lead Paint Trial II.

Other items from Mealey's Lead Litigation Report will be discussed in later posts on this blog. I wish to thank James Cordrey, Editor of LexisNexis Legal News, for this information. He can be reached at James.Cordrey@lexisnexus.com or 610-205-1125.