Friday, December 14, 2007

Ohio Dismisses Lead Paint Suit

This saga is just about over. Sherwin Williams (SHW) just keeps getting good news almost daily now.

Jane Genova posted on Wednesday:

"Toldeo, OH Lead Public Nuisance Case Dismissed by Judge Franks

The news is that today Judge Ruth Franks dismissed the City of Toledo, Ohio lead paint public nuisance case against the former lead-paint companies, including Sherwin-Williams. The plaintiff was represented by law firm Motley Rice. The only remaining city lawsuit in this category in OH is that of the City of Columbus.

But it is the line of argument used by Judge Franks in her opinion that is getting the attention of lead-paint watchers, especially attorneys on both sides. This Judge goes through each of the plaintiff's claims and the defendants' contentions why the case should be dismissed. Then in this 12-page opinion she cites each legal issue and why or why not it led her to her decision.

Because of this painstaking analysis of the legal matters and that the Judge dismissed the case, a number of defense attorneys predict this is a promising sign that it is the legal arguments which will win out in any future litigation and reviews of the lead-paint public nuisance matter.

What is also encouraging to the defense bar is that in this particular situation, as Judge Franks writes, "When ruling on a motion to dismiss, the complaint is to be construed in a light most favorable to the plaintiff and material allegations are taken as admitted ... To sustain a motion to dismiss it must appear beyond doubt from the complaint that no set of facts exists which may entitle the plaintiff to the relief requested." [Complimentary copy of the opinion is available from]

In its first cause of action, the City of Toledo claimed a public nuisance. It alleged that the defendant had created it by negligent or intentional conduct. This breached its duty to exercise the highest degree of care in the design, manufacture etc. of lead. As a direct and proximate cause of this public nuisance, plaintiff has suffered and will continue to suffer substantial injuries and damages.

In their motion to dismiss, the defendants argued:

* Public nuisance claim is subsumed and barred by Ohio's Product Liability Act
* The claim is barred by the statue of limitations
* Plaintiff fails to allege that defendants control the alleged public nuisance
* Continued presence of intact lead cannot be considered a nuisance because it is legislatively permitted. [the lead-safe issue].

Given that Judge Franks explicitly addressed each side's contentions, this is a key opinion in the lead-paint public nuisance saga.

Note: The law firm Motley Rice is not representing the State of OH in its public nuisance lead-paint lawsuit filed by state Attorney General Marc Dann." End Post

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