In a ruling issued in Providence, RI, Superior Court Judge Michael A. Silverstein said Rhode Island Attorney General Sheldon Whitehouse could proceed with his suit against several companies, including The Sherwin-Williams Co. and ICI’s The Glidden Co. But Silverstein also rejected major parts of the Rhode Island suit, and lawyers for the defendants say the decision actually amounts to a victory for the industry in several key aspects.
Richard Thornburgh, a former U.S. attorney general who is representing several of the defendants, said Silverstein’s ruling was “a significant victory for the defendants.” Thornburgh, quoted in a report in the Providence Journal, said Silverstein dismissed product-liability claims and indicated that Whitehouse cannot seek to recover the costs of providing special education for children affected by lead poisoning.
In a detailed statement issued following the ruling, Sherwin-Williams also called the ruling an “important victory” for the defendant companies. The company said the decision “dismissed a large part of the state’s claims,” including those involving product liability, negligence, negligent misrepresentation and fraud. The judge declined to dismiss the state’s claims of public nuisance, unjust enrichment, indemnity, civil conspiracy, and unfair trade practices. But Sherwin-Williams said those claims “raised questions of fact that procedurally could not be decided at this preliminary stage.”
Lawyers involved in the case emphasized that Silverstein’s ruling represents only a preliminary action in the case, with extensive legal maneuvering anticipated before — and if — the case ever goes to trial. Silverstein’s ruling also could be challenged by appeal, a possibility that one observer described as likely.
Thomas Graves, vice president and general counsel of the National Paint & Coatings Association, said Silverstein’s ruling should come as no surprise, noting that the judge “was impressed that the Rhode Island Lead Poisoning Prevention Act of 1991 could be construed liberally to permit the state attorney general to bring action.” But Graves added that the ruling only addresses whether Whitehouse has the authority to bring the suit “on its face, not the merits.” The NPCA is not a defendant in the case.
Graves also said Silverstein implied in his ruling that another state law could offer protection for companies that manufacture paint, as opposed to companies that produced raw materials used in paint, such as lead pigments. The state law sets limits on the filing of lawsuits after improvements to properties have been made, Graves said.
In addition to Sherwin-Williams, the defendants in the Rhode Island lawsuit are The O’Brien Corp., The Glidden Co., American Cyanamid Co., Atlantic Richfield Co. (ARCO), DuPont Co., NL Industries Inc., SCM Chemicals and the Lead Industries Association. American Cyanamid’s lead-related liabilities were assumed by Cytec Industries Inc.
