Rhode Island Supreme Court Hands Public Nuisance Advocates a Conclusive Defeat

HOUSTON (LAWFUEL) – The Rhode Island Supreme Court has unanimously reversed the 2006 public nuisance verdict rendered against three lead paint manufacturers – a verdict that some estimated would cost the defendants more than $2 billion in abatement costs. The decision, issued July 1, 2008, terminates the longest civil proceeding in Rhode Island’s history. The case consumed nine years, two jury trials – one ending in a hung jury and mistrial – and a complicated “abatement” proceeding that was abruptly halted by the Court’s decision.

Gardere Wynne Sewell LLP partners Richard O. Faulk and John S. Gray have exhaustively studied, written and published on the issue of public nuisance. Their recent law review article, “Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation,” 2007 Mich. St. L. Rev. 941 (2007), was cited four times by the Court in its landmark opinion in The State of Rhode Island v. Lead Industries Association, Inc., et al.

Mr. Faulk and Mr. Gray also represented the Coalition for Public Nuisance Fairness and the Property and Casualty Insurance Association of American in an amicus curiae brief filed in the Supreme Court.

The court’s decision may be found at http://www.courts.ri.gov/supreme/pdf-files/04-63_7-2-08.pdf. Mr. Faulk and Mr. Gray’s article and amicus curiae brief may be found at http://msulr.law.msu.edu/back_issues/2007/4/Faulk-Gray.pdf and http://www.gardere.com/Content/hubbard/tbl_s31Publications/FileUpload137/1898/Amicus_Brief_State_of_RI_v_Lead_Indust_RI_Sup_Ct.pdf.

From his office in Houston, Texas, Mr. Faulk issued the following statement:

“The Rhode Island Supreme Court has rejected an invitation to expand the tort of public nuisance – a dangerous invitation which, if accepted, would have created a tort whose limits are constrained only by the imagination. Using the Attorney General’s arguments, literally any product or any course of conduct that creates a ‘public health problem’ could be deemed a ‘public nuisance’ that ‘the public should not have to bear’ – irrespective of its original legality. The invitation tried to entice the Court to step outside of its traditional judicial role by asking it to disregard existing statutes that held landowners responsible for preventing lead dangers caused by deteriorating paint.

“The Court wisely refused the invitation, noting that the creation of new causes of action is a ‘legislative function’ and that Courts are neither ‘wholly free’ to ‘innovate at pleasure’ nor ‘knights errant roaming at will’ to pursue their own ideals. Although the state’s attorneys consistently maintained that the public nuisance lawsuit was necessary to protect Rhode Island’s children from the dangers of deteriorated and flaking lead paint, their arguments were belied by the facts. Any danger was created by landowners who allowed the paint to deteriorate in the first place – not by paint manufacturers who had no control over the maintenance of private homes.

“On a broader scale, advocates who are pursuing public nuisance lawsuits in other contexts, such as climate change, should take special notice of the Rhode Island Court’s decision to forego an activist approach. Courts are reluctant to plunge into controversies governed by standards that they must spontaneously invent. Whether the alleged ‘nuisance’ is lead paint, greenhouse gas emissions, guns, subprime mortgages or any other alleged ‘burden’ on society, Courts do not act through ‘unregulated benevolence,’ as the Rhode Island Court noted. Instead, they require sound principles and clear standards to inform their deliberations – principles and standards that public nuisance advocates have failed to provide.”

Gardere Wynne Sewell LLP, an AmLaw 200 firm, was founded in 1909 and is one of the Southwest’s largest full-service law firms. With offices in Austin, Dallas, Houston and Mexico City, Gardere provides legal services to private and public companies and individuals in areas of energy, litigation, corporate, tax, environmental, labor and employment, intellectual property and financial services.

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