Wednesday, November 28, 2007

Lead Paint Defendants Attack RI Abatement Plan

Filed from Jane Genova. Through their attorneys, the three defendants in the Rhode Island Lead Paint Trial II - Sherwin-Williams (SHW), Millennium Holdings and NL Industries (NL) - filed a motion today in RI Superior Court.

The motion seeks to strike the plaintiff's proposed lead-abatement plan [that is, the state Attorney General's plan] in its entirety. Alternatively, defendants move the court to strike each part of the Attorney General's plan that

*Constitutes improper equitable relief
*Exceeds the court's jurisdiction and authority
*Affects the rights of persons not a party to this proceeding
*Is constitutionally improper
*And, is unsupported by the prior record in this proceedings.

This particular motion is separate from the defendants' response to that abatement plan which is due December 15, 2007.

Specifically, here are more details on the defendants' claim that the abatement plan is on its face defective for five basic reasons:

It seeks money damages that cannot be awarded in equity. The court is constitutionally precluded from awarding money damages, a form of relief exclusively reserved for the jury. Moreover, the plan confirms that an adequate remedy at law exists for the Attorney General through RI's ability to bring future claims for money damages and because the relief sought is or was compensable in charges. As a matter of law, no remedy can now include the payment of money or the creation of a fund.

It is premised on abatement of individual properties. No remedy can include the inspection or abatement of individual properties because those properties were not part of the trial and verdict, and property owners were neither given notice nor permitted to participate in the proceedings. Ordering abatement of individual properties would exceed the court's jurisdiction and authority, would be improper in a parens patriae action, and would violate property owners' constitutional rights.

It includes a request for prospective injunctive relief to prevent future harm, but the RI AG filed to prove his right to such equitable relief. The jury never decided, as it was constitutionally required to do, the predicate facts for mandatory injunctive relief by clear and convincing evidence. Not did the RI AG prove under the proper standard of proof that any harm from properly maintained lead paint is practically certain to occur in the future. Therefore, there is no basis on which the court can enter a mandatory injunction.

It improperly seeks relief for properties and environmental conditions that were never part of the trial or verdict, ranging from playgrounds to public buildings. Similarly, no relief can include the abatement of intact, well-maintained lead paint because the AG conceded (and the legislature declared) that such paint does not present an immediate hazard.

It purports to supplant existing statutory and regulatory requirements for addressing lead-based paint hazards. This court cannot properly enter an order that conflicts with or is inconsistent with the General Assembly's enactments. Any permissible remedy may only fill a gap in those requirements beyond that which can be achieved through compliance with, and enforcement of, existing laws and regulations.
You can receive a complimentary copy of this 38-page motion by contacting

More commentary an be found here.

The long and short of it is Lynch can file his motions that make a nice neat little press release and play well in the local papers while the defendants will eventually win with a little called the law.

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