As usual, Jane Genova is on top of this as the briefs were filed.
From NL Industries’ (NL) Brief:
“The trial court sanctioned liability without requiring the jury to find that any defendant acted negligently, or intentionally, or that any defendant knew or should have known of any alleged danger, or that any defendant ever sold lead pigment in Rhode Island or that any defendant’s lead pigment was present on any building in this State at anytime, past or present.” [page 1]
“If the trial court’s jury instructions stand, the only question is which industry will be next. What happens if hair spray is found to be a problem five years from now? What about polyurethane?” [page 6]
From Millennium Holdings’ Brief:
“If the aggregate presence of a product in the State is to be recognized as a new basis for liability, then certainly no person should be charged with responsibility beyond the extent to which that person’s product is present in the State. Yet, here each Defendant has been held liable to abate lead pigments in Rhode Island that it never made or sold, and without any evidence as to whether that Defendant’s product is in the State and, if so, how much.” [page 1]
Excerpts from Sherwin-Williams’ (SHW) Brief:
“The end result was a trial so stacked in Plaintiff’s favor that Defendants effectively were forced to defend themselves with both hands tied behind their backs, while attempting to strike at a moving target – a trial so unfair in its conception and execution as to violate the U.S. and Rhode Island Constitutions.” [page 7]
“It is impossible to know what comprises the alleged nuisance when the nuisance is an unidentified fiction over which Defendants exercise no control. It is impossible to challenge actual cause where there is no specifically identified nuisance or injury. It is impossible to argue that others are the sole or alternative cause of any harm, a key defense, when no particular injury, no specific property, and no other potential cause can be investigated. The conception of the nuisance thus relieved Plaintiff of required elements of proof and denied Defendants the ability to rebut any particular instance of the purported nuisance. It created, without fair notice and after the fact, limitless, endless liability, without proof of fault, actual causation, or proximate causation.” [page 6-7]
“The suit and the legislative approach are very different universes about to collide. Based on the recognition that well-maintained properties are not dangerous, the Lead Poisoning Prevention Act places the responsibility for lead remediation on the property owners who have control over the condition of the paint and creates incentives to encourage owners to maintain their properties.” [pages 3-4]
“A jury of six people was encouraged to issue a verdict, and Plaintiff insists that the jury has issued a verdict, tantamount to new statewide policies for public health and manufacturer liability. The common law is not filling a gap; it is trespassing on the legislative domain and creating conflicting rules.’ [page 5].
More to come …
Disclosure (“none” means no position): Long Sherwin, none
