ATRA WELCOMES R.I. SUPREME COURT'S 'LEAD PAINT' REVERSAL

Pushers of 'Public Nuisance' Claims Againt Makers of Lawful Products Lose Again

Washington, DC, July 01, 2008 -- The American Tort Reform Association today heralded the Rhode Island Supreme Court’s unanimous decision against the state and its former attorney general in an appeal of their multibillion-dollar lawsuit against companies that made lead paint decades ago.

“Though it’s troubling that the original lawsuit ever got as far as it did,” observed ATRA president Tiger Joyce, “those of us who advocate for preserving the rule of law and reasonable predictability within our civil courts are very pleased with the high court’s reversal of the trial judge.

“Rhode Island’s former attorney general and the outside counsel he contracted with had shamelessly tried to stretch public nuisance law beyond recognition,” Joyce continued. “Though the trial judge was willing to go along with this perversion of the law, the state’s supreme court would have none of it, and its unambiguous rejection of the state’s case restores some logic to this area of tort law.”

The court wrote in its opinion, “[L]ike most courts, we are particularly loath to indulge in the abrupt abandonment of settled principles and distinctions that have been carefully developed over the years.”

In order to successfully prove liability under public nuisance law, the court said, a plaintiff must demonstrate, among other things, that a defendant had control “over the instrumentality alleged to have created the nuisance when the damage occurred.” But “the state’s complaint . . . fails to allege any facts that would support a conclusion that defendants were in control of the lead pigment at the time it harmed Rhode Island’s children.”

Joyce said the Rhode Island decision is similar to recent decisions by the supreme courts of Missouri, New Jersey and Illinois, and that “the momentum clearly favors the rejection of product-based public nuisance claims.”

He also noted the Rhode Island court’s principled caution with regard to state attorneys general hiring private sector personal injury lawyers on a contingent fee basis to litigate cases on behalf of the state.

Because “contingent fee agreements inherently implicate personal profit-making as a motivation . . . it is utterly imperative that absolute primacy be accorded at all times to the decision-making role of the Attorney General when he or she has entered into an agreement with contingent fee counsel. Such absolute primacy is necessary in order to ensure that the profit-making motivation is always subordinated to the Attorney General’s ‘common law duty to represent the public interest,’” the court wrote.

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The American Tort Reform Association (ATRA) is the only national organization dedicated exclusively to tort and liability reform through public education and the enactment of legislation. ATRA's membership includes non profits, small and large companies, as well as state and national trade, business, and professional associations.