Aileen Sprague, Fidelma Fitzpatrick 
Copyright © 2006 Roger Williams University Law Review; Aileen Sprague;
Fidelma Fitzpatrick

INTRODUCTION
On February 22, 2006, a jury of Rhode Islanders delivered a decisive verdict in a
case that had been the source of significant political, social, and economic debate
since it was filed in 1999. On that day, a jury of six, who had devoted more than
four months of their lives hearing evidence in the longest civil jury trial in Rhode
Island's history, [FN1] delivered a victory for the people of the *604 State of
Rhode Island by rendering a verdict determining that: (1) the presence of lead
pigments in paints throughout Rhode Island was a public nuisance; (2) three former
manufacturers, suppliers, and promoters of lead pigments - Sherwin Williams,
Millennium Holdings, and NL Industries (hereinafter "Lead manufacturers" or
"Defendants") - were liable for that public nuisance; and (3) the responsible
defendants were required to abate the existing nuisance.

The factual premise of the State's suit was simple. It recognized that lead
poisoning poses a very serious risk to a large percentage of children under six
years of age in Rhode Island. [FN3] The primary reason that lead poisoning has such
a widespread adverse impact on the health of Rhode Island children is that lead is
still present in and on homes and buildings throughout our state despite the fact
that it was banned for residential use in the United States in 1978. 

Furthermore, the action recognized that the manufacturers of lead products used in
paint (hereinafter "Lead") and their trade association were responsible for this
harm to Rhode Islanders because they manufactured and promoted Lead for use in and
on homes and buildings throughout the State of Rhode Island despite their knowledge
of its toxicity. [FN5] In short, the Defendants knew Lead was dangerous but
continued to sell it in Rhode Island. [FN6] In addition, they also failed to warn
parents, homeowners, or the public about the dangers of lead based paint. [FN7]
For decades, many groups, including State government, homeowners and landlords,
parents, and child health and housing advocates, worked to solve the lead poisoning
problem in Rhode Island. Through the litigation, after years of bearing the burden
of this public health scourge, the Attorney General and the State sought to have the
Lead manufacturers share their responsibility for the lead poisoning crisis in Rhode
Island.

The legal premise was also simple. The State maintained that the Lead
manufacturers had created an environmental hazard which they, like all who 
pollute the environment, should clean up. The case was brought under the common law
claim of public nuisance, which imposes liability on those who "unreasonabl[y]
interfere[] with a right common to the general public" such as the "the health,
safety, peace, comfort or convenience of the general community." [FN9] Public
nuisance law allowed the State to pursue the public health remedy of abatement,
which "means the public nuisance is to be rendered harmless or suppressed." [FN10]
Such a remedy would work toward a goal of primary prevention by protecting children
before they are poisoned. Leading public health advocates have maintained that this
strategy is essential to preventing lead poisoning in the future. [FN11] As the
Centers for Disease Control recently concluded, the "answer to lead poisoning is
prevention. The alternative of intervening only after a child has been harmed is
unacceptable and serves neither the interests of the child nor the property *607
owner nor future generations of children." 

On February 13, 2006, after nearly ten weeks of receiving evidence, the trial
court gave jury instructions which covered the law of public nuisance, among other
things. [FN13] After eight days of deliberation, the jury returned a unanimous
verdict in favor of the State. [FN14] Post-verdict interviews with the jurors
revealed that the process was a perfect example of the way the jury system in the
United States is supposed to work: the jurors recounted that they put aside their
own philosophical and social beliefs and applied only the facts they heard during
trial to the law as it was given to them.

The verdict, which was the culmination of the jurors' scrupulous adherence to the
law and facts presented in the case, should have put an end to the heated social and
political debate that surrounded the suit since its inception in 1999. 
Instead, the verdict fueled more heated debates, especially in light of the
large decrease in the value of the publicly traded Defendants - Sherwin Williams and
NL Industries - that accompanied the verdict. Corporate interests have
flooded the media with criticism of the jurors' work, questioning the decision that
they reached, the manner in which the trial justice conducted the litigation, and
even the wisdom of Rhode Island's well-established public nuisance law. 
While this litigation has been described as "historic," [FN19] the progress the
State of Rhode Island has made against corporations who have successfully immunized
themselves from liability for more than twenty years through aggressive litigation
strategy and scorched earth discovery has also been historic. While
this verdict represents a break from the past, the legal and factual premise of
the State's case has deep roots in Rhode Island's legal tradition. The Attorney
General's responsibility to bring this type of action, as well as the controlling
law of public nuisance, is well-grounded in over a century of Rhode Island
jurisprudence. The concept of public nuisance is not a landmark or novel cause of
action; it is firmly rooted in the common law, with cases in Rhode Island dating
back to 1800s. Furthermore, the law of Rhode Island in this regard is not
idiosyncratic or different from public nuisance law around the country. Not only is
there significant historical precedent nationwide for Rhode Island's suit, but other
courts around the country that have also considered the applicability of public
nuisance law to the lead poisoning crisis and the conduct of these defendants have
issued decisions mirroring those of the Rhode Island Superior Court.

Part I of this Article provides an extensive overview of the public nuisance
claim, explores that claim's deep roots in Rhode Island law and refutes arguments
typically made against applying public nuisance to remedy communal harms, such as
lead poisoning. Part II discusses the significance of the Rhode Island verdict and
discusses the remedies that the State will make on behalf of the Rhode Islanders.
Part III provides an overview of successful cases brought in other states by
government entities against the Lead defendants. The Article concludes that these
companies will no longer be able to use carefully crafted legal defenses to shield
themselves from responsibility for the lead poisoning crisis that plagues the
country and its children.

Roger Williams University Law Review
Spring 2006

Article reproduced with permission of the authors.