Rhode Island Supreme Court Overturns Lead Paint Judgment

In July 2008, the Rhode Island Supreme Court overturned a jury verdict imposing liability against several former lead pigment manufacturers.¹ The case involved a nine-year attempt by the Rhode Island Attorney General to obtain damages and remediation for 240,000 homeowners by applying public nuisance law in a novel and expansive fashion.² The expansive jury verdict and the magnitude of the potential damages (estimated at between $2 to $4 billion), would have marked a significant change in the law, which the appellate court rejected in an exhaustive ruling steeped in medieval and English common law, Oliver Wendell Holmes, and Edmund Burke. The decision will likely retard the further growth of such suits, has already mooted planned actions in other states, and has revived the stock prices of several defendant paint manufacturers.

Background

The court’s analysis begins with a description of Rhode Island’s “undisputed” lead poisoning “crisis.” Indeed, the Rhode Island General Assembly has found that lead poisoning is “the most severe environmental health problem in Rhode Island.”³ The court also noted that “Providence has received the unfavorable nickname ‘the lead paint capital’ because of its disproportionately large number of children with elevated blood-lead levels.”⁴ The statistics were not in dispute: 37,363 Rhode Island children were poisoned by lead paint between January 1993 and December 2004; 1,167 new cases of lead poisoning were identified in 2004 and the state had a prevalence rate of more than double the national average.⁵

The decision begins with an ominous statement for the victims of lead poisoning: “[t]his Court is powerless to fashion independently the cause of action that would achieve the justice that these children deserve.”⁶ Overturning the jury and trial court’s attempt to offer a remedy, the court defended its refusal to legislate by invoking Justice Cardozo’s The Nature of the Judicial Process for the proposition that a judge:

is not to innovate in pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.⁷

The Attorney General’s Involvement

In response to the lead poisoning “crisis,” a series of laws were enacted, including the federal Lead-Based Paint Poisoning Prevention Act and corresponding state statutes. According to the Attorney General, none of these statutes sufficiently addressed the problem of lead poisoning. Therefore, in October 1999, then Rhode Island Attorney General Sheldon Whitehouse⁸ filed a ten-count complaint against eight former lead paint manufacturers and a trade association.⁹

The essence of the state’s claim was that the “defendants failed to warn Rhode Islanders of the hazardous nature of lead and failed to adequately test lead pigment,” and “conceal[ed] these hazards from the public or misrepresented that they were safe.”¹⁰ Thus, the complaint alleged a cause of action under Rhode Island’s Unfair Trade Practices and Consumer Protection Act and alleged strict liability, negligence, negligent misrepresentation, fraudulent misrepresentation, civil conspiracy, unjust enrichment, and indemnification. It demanded compensatory and punitive damages as well as funding of educational and lead-poison prevention programs. Also, a subject of great controversy, the state sought to have defendants abate lead pigment in all Rhode Island buildings which are accessible to children.¹¹

Procedural History

Initially, trial judge Michael Silverstein severed the claims and decided that the trial would be trifurcated. The first stage consisted of a seven-week trial on the public nuisance claim. When the jury was deadlocked, a mistrial was declared.

Prior to the second trial, the state voluntarily dismissed all of its non-equitable claims and moved to dismiss the defendant’s jury demand. Judge Silverstein denied the motion, finding that the existence of a nuisance was a factual issue and that the demand for damages afforded the defendants a right to a jury trial. Also, shortly before the trial, the state moved in limine to exclude all evidence and testimony regarding specific Rhode Island properties. The trial justice granted the motion, ruling that in order to prove a public nuisance “specific evidence is irrelevant.”¹²

After a week of deliberations, the jury found that the “cumulative presence of lead pigment in paints and coatings on buildings throughout the State of Rhode Island” constituted a public nuisance, that the defendants were liable for contributing to the nuisance and were legally obligated to abate the nuisance.¹³

Appellate Review

The defendants’ main attack on appeal was to argue (1) that the paint companies’ conduct did not interfere with a “public right” and (2) that they were not in control of the lead pigment at the time it caused harm to Rhode Island children. After exhaustive analysis, the court essentially adopted the defendants’ arguments.

However, before examining the law, the court again sought to outline its limited role in addressing societal ills. Thus, the substantive portion of the decision begins, just as the recitation of facts commenced, with a disclaimer that the legal system does not redress all wrongs. The court cited its recent decision, Ryan v. Roman Catholic Bishop of Rhode Island, to the effect that “[o]ur judicial system is not a panacea that can satisfy everyone who has recourse to it. Some wrongs and injuries do not lend themselves to full re-addressment by the judicial system.”¹⁴

From there, the court recounted the history of public nuisance law reaching back to twelth century English common law. Only in the sixteenth century was public nuisance “transformed” into a tort. The doctrine was imported to the colonies and ultimately found its way into Rhode Island jurisprudence. Later, public nuisance was codified in R.I.G.L. §10-1-1 which allows the attorney general to “bring an action in the name of the state. . . to abate the nuisance.”

The court then reviewed Rhode Island public nuisance cases and found that the decisions comported with those of other states, as well as the Restatement. Also, the court looked to a decision from the New Jersey Supreme Court, which “consider[ed] facts that were virtually identical to those in this case.”¹⁵

The court found “three principal elements that were essential to establish public nuisance” in Rhode Island:

(1) an unreasonable interference;

(2) with a common right to the general public;

(3) by a person or people with control over the instrumentality alleged to have created the nuisance when the damage occurred.¹⁶

Additionally, the court held that causation was an essential element of nuisance. 

With respect to the “unreasonable interference” element, the court noted that the reasonableness of an activity depends on its nature and the “magnitude of the interference.”¹⁷ Relying on cases involving waste disposal, animal removal, greenhouse exhaust and building construction, the court stated that even activities which did not violate the law but “create a substantial and continuing interference with the public right” may be unreasonable.¹⁸

The court then reviewed the “public right” prong. Relying on the Restatement¹⁹ and a line of its own cases, the court found that the interest affected must be common to the general public and not to a particular individual. It distinguished between the impact on the rights of many individuals and those “common to all members of the general public.”²⁰

Regarding the “control” element, the court found that “[t]he defendant must have had control over the nuisance-causing instrumentality at the time that the damage occurred” and noted that “[c]ontrol at the time the damage occurs is critical in public nuisance cases.”²¹

Lastly, the court reviewed the causation factor and ruled that liability will only attach in public nuisance cases “if the conduct complained of actually caused an interference with the public right.”²² While certain conduct may constitute an unreasonable interference with the public right, “basic fairness dictates that the defendant must have caused the interference we held liable for its abatement.”²³ Thus, the court held that a defendant must not only be the cause-in-fact of an injury, but proximate causation must also be proven.

Quoting from a series of cases involving dumping and land use, the court found that, in addition to these four elements, another concern entered into the public nuisance calculation: the “occurrence of a dangerous condition at a specific location.”²⁴ The public nuisance tort is not limited to a single individual’s use of his own property, but rather “typically arises on a defendant’s land and interferes with a public right.”²⁵

After analyzing the public nuisance doctrine, the court found that the defendant’s motion to dismiss under Rule 12(b)(6) should have been granted since the allegations in the complaint were defective. Lacking from the complaint was “any allegation that defendants have interfered with a public right as that term has long been understood in the law of public nuisance.”²⁶ Further, the court held that “equally problematic is the absence of any allegation that defendants had control over the lead pigment at the time it caused harm to children.”²⁷

A missing element in the state’s case was “an interference with the public right—those individual resources shared by the public at large, such as air, water, or public rights of way [which] deprive all members of the community of a right to some resource which they otherwise are entitled.”²⁸ The court rejected as vague the state’s assertion that unabated lead infringed on the health of the public at large. The court analogized “the right of an individual child not to be poisoned by lead paint” to a purported right to be free from the presence of illegal weapons, a standard of living, medical care, and housing—all widely rejected notions. To hold otherwise would require an “enormous leap” which is “wholly inconsistent with the widely recognized principal that the evolution of the common law should occur gradually, predictably and incrementally.”²⁹ The court found that such an expansion of the law violated Edmund Burke’s adage that “bad laws are the worst sort of tyranny.”³⁰

The court rejected the state’s case on another ground. Even had the first element been satisfied, the case failed the “control” prong of the public nuisance test. Since the manufacturer did not control the paint “at the time it caused injury to children in Rhode Island,” the state could simply not meet its burden under the law.³¹

The court acknowledged that lead poisoning was a widespread problem but suggested that alternate remedies exist such as “an injunction requiring abatement” against specific landlords, imposing penalties and fines pursuant to the LPPA against property owners, private causes of action on behalf of “households with at-risk occupants,” and products liability claims against lead paint manufacturers. In conclusion, the court found that:

the law of public nuisance never before has been applied to products however harmful. Courts in other states consistently have rejected product-based public nuisance suits against lead pigment manufacturers, expressing a concern that allowing such a lawsuit would circumvent the basic requirements of products liability law.³²

Relying in part on the New Jersey Supreme Court’s lead, the court ruled that to hold otherwise would cause “nuisance law [to] become a monster that would devour in one gulp the entire law of tort.”³³

Lastly, the court noted that its analysis was consistent with “several statutory schemes to address this problem” created by the Rhode Island General Assembly, which provided “clear policy decisions about how to reduce lead hazards in Rhode Island homes³⁴ In other words, landlords who controlled the application of lead paint are the appropriate targets of victims’ claims. Not surprisingly, the court held that in enacting lead paint remedial statutes, the legislature “did not include an authorization of an action for public nuisance against manufacturers.”³⁵ 

* David Strachman, a partner in McIntyre, Tate & Lynch, LLP of Providence, Rhode Island concentrates in probate and family law and representing terrorism victims.

 

Endnotes

1 State of Rhode Island v. Lead Industries, Inc., 951 A.2d 428 (R.I. 2008). Cases against former manufacturers have also been adjudicated unsuccessfully before courts in Missouri, New Jersey, Illinois, Ohio, and New York. In Wisconsin, a public nuisance claim was rejected by the jury.

2 The case received attention for a number of related issues. First, many questioned whether Attorney General Patrick Lynch (now-President, National Association of Attorneys General) could retain outside counsel on a contingency-fee basis. Also of note, Lynch was cited for civil contempt and “ordered to… pay a fine of $5,000 for maligning the former lead paint makers in the media.” Rhode Island AG Found in Contempt in Lead Paint Trial, WSJ Law Blog, available at http://blogs.wsj.com/law/2006/05/05/rhode-island-agfound-in-contempt-in-lead-paint-trial/.

3 R.I.G.L. §23-24.6-3.

4 State of Rhode Island v. Lead Industries, Inc., 951 A.2d 428, 436 (R.I. 2008). Rhode Island has a population of only 1 million, while Providence, where most incidences occur, has only 180,000 residents.

5 Id. at 438. When the lawsuit was filed in 1999, Rhode Island’s elevated blood-lead level incidence rate was 6.9 percent. Rhode Island instituted a comprehensive lead prevention program and, by 2007, the rate dropped to 1.3 percent. Daniela Quilliam, Childhood Lead Poisoning in Rhode Island, The Numbers: 2008 7, Rhode Island Department of Health (2008), available at www.health.ri.gov/lead/databook/2008_Databook.pdf.

6 Id. at 436.

7 Id. at 436.

8 Whitehouse is currently a U.S. Senator from Rhode Island, serving on the Senate Judiciary Committee.

9 By the time of the trial, the Lead Industries Association had filed for bankruptcy protection and several of the defendant manufacturers had been dismissed. E.I.Du Pont deNemorus Company had previously entered a controversial settlement with the state which saw millions paid to a Massachusetts charity.

10 Id. at 440.

11 Id.

12 Id. at 449.

13 Id. at 443. The jury instructions read:

You need not find that lead pigment manufactured by the Defendants, or any of them, is present in particular properties in Rhode Island to conclude that Defendants, or one or more of them, are liable for creating, maintaining, or substantially contributing to the creation or maintenance of a public nuisance... nor do you have to find that the Defendants, or any of them, sold lead pigment in Rhode Island to conclude that the conduct of such Defendants, or any of them, is a proximate cause of a public nuisance.

State of Rhode Island v. Lead Industries, Inc., 2007 R.I. Super. LEXIS 32, at *19 (R.I. Super. Feb. 26, 2007).

14 Id. at 443. See Ryan v. Roman Catholic Bishop of Rhode Island, 941 A. 2d 174, 188 (R.I. 2008).

15 Id. at 446, In re Lead Paint Litigation, 191 N.J. 405, 924 A.2d 484 (2007).

16 Id. at 446.

17 Id.

18 Id. at 447.

19 Restatement (Second) Torts §821B, comment g.

20 Id. at 448, citing the Restatement (Second) Torts §821B, cmt. g at 92.

21 Id. at 449.

22 Id. at 451.

23 Id. at 451.

24 Id. at 452.

25 Id. at 452.

26 Id. at 453.

27 Id.

28 Id.

29 Id. at 454.

30 Id. at 454.

31 Id. at 455.

32 Id. at 456.

33 Id. at 457.

34 Id.

35 Id.

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