How and Why the Supreme Court of Rhode Island Made the Right Decision in the Multi-Billion-Dollar Rhode Island Lead Paint Case: Part Three in a Three Part Series on the Case

By ANTHONY J. SEBOK
Monday, Jul. 7, 2008

Last week, the Rhode Island Supreme Court reversed a massive verdict in a landmark public nuisance trial against the lead paint industry. The Court’s opinion is significant for two reasons. First, it removes the threat of billions of dollars of liability that had been hanging over the heads of the lead paint industry’s corporations. Second, the four Justices of the Rhode Island Supreme Court who joined in the decision (the decision was unanimous; one Justice did not participate) produced a rich and durable argument for their result, thus demonstrating, in my opinion, that common law courts can still decide hard cases on the basis of law, and not just political expediency.

In today’s column, I will not dwell on the significance the outcome of this case, since in columns published on May 20 and June 3 I explained the history of lead paint public nuisance litigation and its significance to all of corporate America. Rather, in this column I want to discuss the Court’s reasoning and to praise the Court not only for deciding the case the right way, but for getting the right answer for the right reasons.

The Twofold Problem the Rhode Island Supreme Court Confronted

The problem facing the Court in the lead paint suit was twofold. First, from a purely instrumentalist point of view (that is, one looking to the law as a way to solve a social problem, regardless of its meaning of intent), permitting the trial court’s public nuisance verdict to stand must have been very attractive. If the verdict were left undisturbed, the trial judge could easily have ordered the defendants—all of whom were large, out-of-state corporations—to transfer between $2 and $4 billion to the State of Rhode Island, to be used (in theory) for the abatement of lead paint in hundreds of thousands of homes in a state where the homes’ owners and the state are unable or unwilling to pay for the cleanup themselves.

It is easy to dismiss this “instrumentalist” motivation as too cynical for any judge to embrace, at least at the conscious level. Maybe so. Still, how else can we explain the $250 billion tobacco settlement in the late ‘90s? Are we really sure that West Virginia Supreme Court Justice Richard Neely was joking when he wrote in his book, The Product Liability Mess, “As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so”?

The second problem facing the Rhode Island Supreme Court is that the plaintiffs in the case, the state Attorney General and the private law firm it had retained, had made an argument that, from a purely formalistic perspective, seemed to be a winner. The plaintiffs’ argument was, basically, that this was a pollution case.

Lead pigment, the plaintiffs argued, was a contaminant that had caused and threatened to continue to cause injuries in children who lived in homes throughout Rhode Island. Public nuisance law – the law the plaintiffs sought to invoke -- requires the abatement of an unreasonable interference with a public right. Accordingly, public nuisance law had often been applied by courts throughout the nation in cases where a polluter “interfered” with the public’s use of a waterway or land by the release of a contaminant into the water or air. The plaintiffs asked: If a company could be required to pay for the clean-up of a river or be forced to put scrubbers on its smokestacks, why couldn’t the paint industry be forced to clean up the lead particles that were now distributed across Rhode Island affixed to the walls of homes?

(As I noted in my June 3 column, the fact that the defendants, during oral argument, insisted that public nuisance requires proof of fault (in addition to proof of unreasonable interference with a public right) only helped the plaintiffs’ case. In fact, there is no requirement of proof of fault in the law of public nuisance, and the defendants should have known better than to make such a spurious argument.)

How the Court’s Decision Avoided Two Strong Temptations and Reasoned Wisely in its Application of the Law

Laudably, the Court avoided the twin temptations of unbridled instrumentalism and mechanical formalism, in a decision that is a model of common law reasoning.

It began by acknowledging the very real human stakes in the case: Children in Rhode Island have been, and will be, exposed to lead as a result of the use of lead paint in homes in the state in the late Nineteenth and much of the Twentieth Century. Along with others—the state of Rhode Island, the federal government, and the owners of the homes in which the children live—the defendants (the corporate heirs of the companies that made lead pigment and marketed lead paint) bear some degree of moral responsibility for the current public health problem.

The Court argued, however, that these pressing political and moral concerns have only limited force in the law. The opinion cited Justices Cardozo and Holmes early in the opinion to support the Rhode Island Justices’ view that the common law cannot be remade by the courts to fit the needs of society.

This use of Cardozo and Holmes might come as a surprise to those who assume that both judges were at the vanguard of the movement called “Legal Realism,” which was supposed to have taught us that the law always bends to meet social needs. But the Rhode Island Supreme Court proved itself to be more sophisticated in legal theory than many law professors, for it correctly understood that both Cardozo and Holmes had a theory of the common law that demanded more of judges than that they simply act like politicians. To the contrary, Cardozo and Holmes (who were not, strictly speaking, legal realists) understood that common law principles, not politics, guided judicial reasoning, even though social conditions could help guide the judge as he or she applied those principles to new cases.

The Court also followed the spirit of Cardozo and Holmes when it applied the principles of common law public nuisance to the case before it. The Court could have simply announced that it would not extend the law of public nuisance to the case of lead paint, and left the stage. This would have pleased the defendants and the conservative critics of the litigation, but it would have done little to help the plaintiffs understand why they had lost. Furthermore, it would not have done anything to help develop the common law and aid its evolution.

Challenging the Equation of Lead Particles and Pollution: Why the Court Was Correct

Rather than offering a curt opinion stating public nuisance law did not apply, the Court, to its credit, rolled up its sleeves and tried to explain why the plaintiffs’ simple formalist equation of “lead particles” with “pollution” was inadequate. It offered two arguments, both of which, I believe, are important additions to the law of public nuisance.

First, the Court noted that the definition of “public right” (the second element in the test for public nuisance) does not refer broadly to any interest shared by all persons in a society. The plaintiffs had tried to argue that since all persons in Rhode Island have the capacity to fall ill, the interference with the health of children as a result of exposure to lead particles is an interference with a public right. The Court rejected this argument. It noted that a public right is not a right to common interest but a right to a “public good.”

This distinction is subtle. By definition, a public good is a good that, if enjoyed by anyone in society, must be capable of being enjoyed by all. ( A public park is a classic public good). The distinction is not based on how many persons might be affected by the interference with the ability to enjoy the good: More people might be affected by an interference with their private right to be free of a personal injury than by an interference with the public right to a fishing ground, yet only the latter right can be vindicated by the public nuisance doctrine. The distinction refers, instead, to the party in interest. A public good is a special kind of interest whose protection justifies the extraordinary legal standing that public nuisance provides.

Second, the Court held that the law of public nuisance requires not only that the defendant be a substantial cause of the interference, but that the defendant still be in control of the instrumentality that caused the interference at the time when the suit is brought. The plaintiffs had urged the Court not to apply this requirement, again on the formalistic grounds that it should make no difference whether the defendant was still in control if, in theory, the defendant could be found later and obliged to repair the consequences of the interference it had caused.

The Court’s insistence on control was based, however, on an understanding of the interrelationship between the substantive law of public nuisance and the law of remedies. Nuisance is a branch of equity, and the remedy that nuisance provides is injunctive relief, not damages. The plaintiffs acknowledged this, but claimed that these terms—“equity,” “injunctive relief,” and “damages”—essentially did not mean anything, and could be used interchangeably. The Court held otherwise. It noted that the substantive rules of the common law of nuisance had to be congruent with the remedial rules of equity. It argued that since the remedy for public nuisance was injunctive relief, not damages, then control by the defendant of the target of the court’s injunction (e.g. the instrument of interference) was a necessary and not a contingent element of the case. If a defendant was to be ordered to do something, it had to be able to possess the control necessary to do it.

The arguments that I have reviewed here may strike some as overly technical. The lawyers for the state hoped that the Rhode Island Justices would find them overly technical, too – and would vote to preserve the plaintiffs’ victory by glossing over these doctrinal questions. Meanwhile, on the other side, the lawyers for the lead paint industry hoped to get the verdict overturned by arguing that they never did “anything wrong” – that is, that they never sold lead paint knowing of its dangers.

The Rhode Island Supreme Court understood, however, that the technical rules of the common law are the best and surest guide to answer extremely difficult questions like the ones this case raised. They trusted in their instinct that by sticking close to the law, they would get not only the right answer, but a reasonable answer. They were right, and for that they should be applauded.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site.