Here’s a summary of paint-related stories published in Public Nuisance Wire in 2009:
The June nomination of trial attorney Jack McConnell to a federal judgeship in Rhode Island prompted the Public Nuisance Fairness Coalition to ask U.S. Attorney General Eric Holder to investigate his relationship with former State Attorney General Sheldon Whitehouse. Concerns arose from the 1999 hiring of McConnell and his law firm, Motley Rice, for a no-bid, contingent-fee contract to sue companies that manufactured lead paint sold in Rhode Island.
In July, the Supreme Court of Rhode Island held that the state “cannot allege” facts sufficient to state a claim for common law public nuisance against lead pigment manufacturers and ordered the state to reimburse special litigation costs to three defendants. Although the manufacturers placed lead pigment into the stream of commerce, the court held that they did not control it at the time of the alleged harm and thus did not interfere with a public right for purposes of a common law public nuisance.
After a setback in Mississippi, the paint industry earned another victory when the Wisconsin Supreme Court affirmed a Court of Appeals decision dismissing Ruben Baez Godoy's defective design claim against four defendants.
In August the National Paint & Coatings Association filed an amicus brief in Pennsylvania v. Janssen Pharmaceutica, arguing that flaws inherent in the contingent fee arrangement "threaten the government's ability to properly insure that justice is done, and they undermine public trust in the proper functioning of the government in all areas of our society."
The Public Nuisance Fairness Coalition and associated groups also filed an amici curiae brief in support of the defendant, expressing concern about legal and ethical issues raised by the trial, such as governmental authorities offering outside attorneys a financial interest in cases involving the Commonwealth's police powers.
In November, Sherwin-William filed notice of intent to appeal the $7 million verdict favoring former Mississippi high school sports star Trellvion Gaines, who allegedly suffered neurological illness and cognitive delays as a result of ingesting lead paint chips as a child. After the verdict, questions arose about the veracity of testimony regarding Gaines' deficits.
Also in November, Public Nuisance Wire reported that trial lawyer Jack McConnell, over a 10-year period, contributed to the campaigns of 13 current U.S. senators who may eventually help make him a federal judge. Sens. Jack Reed and Sheldon Whitehouse, the biggest beneficiaries of McConnell's generosity, recommended McDonnell for the judgeship. McConnell represented the State of Rhode Island in unsuccessful litigation against former manufacturers of lead paint. Whitehouse, then the attorney general, hired the firm to file suit in 1999. McConnell was also a member of the litigation team that brought suit against tobacco companies and helped secure the $246-billion, 46-state Tobacco Master Settlement Agreement of 1998.
