Two Sides in Rhode Island Case Offer Contrasting Views Following Mistrial
Lawyers representing the companies said the mistrial - declared by Superior Court Judge Michael A. Silverstein after seven weeks of testimony and approximately four days of jury deliberation - illustrates that litigation is a wasteful exercise and is "not the answer" to concerns about lead hazards.
Lawyers representing the Rhode Island Attorney General's office, meanwhile, indicated that another attempt is likely in their efforts to win a court verdict against former suppliers of lead paint and pigments.
The jury was deadlocked four votes to two in favor of the defendant companies, with a unanimous vote required for a decision. In a trial that began Sept. 4, the state attorney general's office had sought to show that the companies had caused a "public nuisance" due to hazards of old lead-based paint.
John Tarantino, one of the attorneys representing the defendant companies, said the mistrial shows that litigation is not the way to address the issue of lead hazards. According to news reports following the trial, Tarantino said a recently enacted lead-enforcement law in Rhode Island should be given a chance to help deter such hazards. "I hope the state will take something from this," Tarantino said. "The jury has made it clear this is not an argument you can get unanimity on."
Andrew Doyle, president of the National Paint & Coatings Association, agreed. "Judge Silverstein's decision demonstrates, again, that litigation is not the answer. It only serves to delay good-faith efforts to achieve constructive solutions to eradicating childhood lead poisoning," Doyle said.
But Rhode Island Attorney General Sheldon Whitehouse, who filed the suit, said the mistrial merely delays the state's legal challenge to the companies. Whitehouse said he will ask the judge to make a legal determination that the state proved its case, and will seek to initiate a new trial if necessary.
News reports said that the jury foreman, George Mansi, believed the state proved its case. He said a key question in the eyes of some jurors, however, was the state's concession that it could not prove that any children were poisoned in hospitals, schools or other public buildings. In its complaint, the state had included such facilities, along with housing, as possible sources of lead poisoning.
Tim Hardy, an attorney who represented NL Industries Inc. in the Rhode Island trial, told PCI that he saw the question about lead hazards in hospitals, schools and other public buildings as just one of the factors that affected the views of the jurors. He said the defendant companies had also been able to show that lead poisoning cases also occurred in a very small percentage of the state's housing.
Hardy said he believed the defendant companies had made a strong case that the use of "common maintenance practices" can protect children from lead hazards. "That was the core of our presentation and a position espoused by EPA, HUD and the Rhode Island Department of Health," Hardy said, making the point that publications issued by federal and state agencies advise property owners about maintenance of buildings and how it can prevent lead exposure.
Asked about how the mistrial might affect lead-paint lawsuits either pending or under consideration in other jurisdictions, Hardy said industry representatives are hopeful there may be a chilling effect on such litigation.
"I hope that what it means is that other government officials will realize that these cases go on a long time, consume resources and don't help any kids," he said. "I hope instead that they will direct resources to the enforcement of laws on the books requiring that paint be maintained in housing."
Both sides in the Rhode Island case have indicated that they will file briefs asking the judge to issue a summary judgment in their favor. Hardy said rulings on those motions are not anticipated for weeks, meaning announcements about a new trial are not likely until after the first of the year.
The attorney heading the state's legal team, Leonard Decof, was quoted in the Providence Journal as saying that he was looking forward to initiating another trial. After participating in discussions with the jurors following the mistrial ruling, Decof called the proceedings "an education process."
"We're going to be trying this case again and we'd like to know how this case was perceived," he said of the meeting with jurors. Judge Silverstein said he invited lawyers from both sides to meet with the jury in the belief that it would be "helpful when the case is retried, as it almost certainly will be."
Any decision about a second trial, however, is likely to be in the hands of the next Rhode Island attorney general, Patrick C. Lynch, a Democrat who was elected Nov. 5. Whitehouse ran unsuccessfully for governor, and will leave the attorney general's post in January.
Following the mistrial, Lynch issued a statement saying he was disappointed that the jury had failed to render a verdict for the state, and he vowed to continue the "valiant work begun by Whitehouse to protect the most vulnerable members of our society."
During the trial, the state called to the witness stand nine doctors and scientists, some of whom testified that lead paint can be dangerous no matter what condition it's in. Some of those expert witnesses also said lead can cause brain damage and other neurological problems even when present in very low concentrations. Attorneys for the defendant companies countered that existing laws state that intact lead paint does not pose a hazard if proper maintenance practices are employed.