The hits just keep on coming as the Ohio Supreme Court ruled municipalities cannot sue lead paint manufacturers unless they can prove “whose paint” is causing the “public nuisance”. For manufacturers like Sherwin Williams (SHW), NL Indusrtries (NL), DuPont (DD) and Berkshire Hathaway’s (BRK.A)Benjamin Moore, this ruling has now set the legal hurdle plaintiffs must cross and since the scientific community cannot “beyond all doubt” prove who manufactured the paint, this litigation is in it’s final hours.
Another major blow for Motley Rice and other plaintiff firms suing Former Lead Paint Inc. – the Ohio Supreme Court on June 20th, ruled that product identification was necessary. Like the Missouri Supreme Court in the lead paint public nuisance St. Louis decision, the OH Supreme Court rejected a claim of market-share liabiity by the plaintiffs in Jackson v Glidden. The trial court had refused to allow the plaintiffs to sue former producers of lead pigment or their successors without identifying who made the paint. This ruling, of course, is in direct conflict with the jury instructions issued by Rhode Island Superior Judge Michael Silverstein in RI Lead Paint Trial II.
Former Iowa Attorney General Bonnie Campbell, who is spokesperson for the defendants, commented, “For nearly two decades of litigation, plaintiffs have moved from legal theory to legal theory, and venue to venue, in an attempt to place the responsibility for poorly maintained properties on the former manufacturers of lead paint. The market share theory is an attempt to evade the most basic requirements of a product liability suit – that the palintiffs show who made the product that allegedly caused harm.”
Motley Rice is a resourceful opponent. It will be fascinating to observe and deconstruct how it re-goups and re-positions itself in the media after three consecutive state supreme court losses in New Jersey, MO and now OH. We lead-paint watchers are still waiting for the ruling from the OH Supreme Court on SS 117 which would prohibit the state’s public nuisance law from being applied in product liability matters.