Monday, December 10, 2007

Motley Rice Getting The Lead Out

Posted by Greg Hambrick on Mon, Dec 10, 2007 at 12:20 PM

The New York Times has a somewhat confrontational article on Charleston's Motley Rice law firm and their efforts to take on companies that used lead paint back in the old days. It appears that it was difficult to sue the companies because of the inability to prove where the paint came from.

And there things stood until Motley Rice arrived on the scene. In Rhode Island, where Motley Rice has an office — and lots of political ties — the firm agreed to join forces with the attorney general’s office, just as it had in the tobacco case, and take 16.7 percent of the proceeds if its side won. A lawyer named Fidelma Fitzpatrick came up with the most novel theory yet: the state should sue the companies on the ground that lead paint was a “public nuisance.” It was so far-fetched that another lawyer in the office would later tell a reporter that, at first, they called it Fidelma’s Wacky Idea.

Ms. Fitzpatrick explained to me that since the substance was still so prevalent, it was a public nuisance and therefore all the companies were guilty of creating that nuisance. See how easy that was? Suddenly, the case was no longer about an individual who had been harmed by lead — or an absentee landlord who hadn’t maintained his property. It was about those dastardly pigment makers who had put lead in paint.

Armed with this new theory, Motley Rice went to trial in Rhode Island in 2002. Hung jury. Then, in 2006, the case was retried — and Motley Rice won. “Evidence?” laughed Jane Genova, a blogger who has followed the case closely. “There was no evidence. The judge’s instructions said you didn’t need evidence.” If the jurors found that lead paint created a public nuisance, then they should find for the plaintiffs. Sure enough, they did. (It didn’t help that the companies didn’t put on a defense, so sure were they of victory.)

In the last year, it’s gotten even worse for the defendants, at least in Rhode Island. The state, with the help of its friends at Motley Rice, recently unveiled an abatement plan that would require the companies to pay for the inspection of a staggering 240,000 homes as well as thousands of other structures like hospitals and day care centers, and remove lead from most of them. The estimated cost for doing this — almost surely understated — is $2.4 billion, with a hefty chunk of that going to the lawyers, of course. Never mind that for the vast majority of homes, the far better and cheaper solution is simply to keep them maintained. Or that this plan has been ginned up even though the case is still on appeal.

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