Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘lead paint’

Sebok on the Rhode Island Supreme Court lead paint arguments

According to professor Tony Sebok, both sides botched the May 15 oral argument (available on webcast) over the multi-billion dollar lead-paint “public nuisance” judgment, but the plaintiffs botched it worse.  Sebok predicts “that the Rhode Island Supreme Court will understand what is at stake in this case, and do the right thing. It will act like a responsible common law court and interpret the doctrine of public nuisance in a principled way—which in this case means drawing the line between tort and public nuisance, and drawing that line in favor of the defendants.” A decision is expected by July 4.

(Disclosure: I purchased stock in Sherwin-Williams and NL Industries shortly after the oral argument.)

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“Lawsuits that benefit only lawyers”

Hard-hitting column by Stuart Taylor, Jr. on the destructiveness of the current legal actions

seeking more than $400 billion from companies that did business in South Africa during apartheid, [which] score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

American Isuzu Motors v. Ntsebeza, recently allowed to go forward, is being led by (among others) class-actioneer and frequent Overlawyered mentionee Michael Hausfeld.

The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) “The American bar is actively soliciting alien plaintiffs” to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary “as something of a rogue actor.”

With added commentary on the Kivalina climate-change class action, Rhode Island lead paint, shareholder litigation, and Lerach, Weiss, and Scruggs. (National Journal, May 17, will rotate off page so catch it now).

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May 19 roundup

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The right to be poisoned, cont’d

Another case, this time from Brooklyn, about how it’s terribly discriminatory and wrong and just plain mean for a landlord not to want to rent to a family with small kids on the grounds that old lead paint, dangerous to small kids, can be found on the premises. (Andy Newman, “Couple’s Suit Accuses Real Estate Firm of Bias Against Children”, New York Times, Apr. 25). For a similar case from Baltimore, see Nov. 30, 2000.

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December 10 roundup

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October 3 roundup

  • Yet another Apple suit, this time on behalf of user who wishes iPod and iTunes were more compatible with other song vendors and devices [Miami Herald/ILR]

  • Fairview Heights, Ill. alderman says town was “deceived” into serving as lead plaintiff in class action against Orbitz, Priceline, Expedia and other online travel firms [Madison County Record]; More: here and here.

  • “Evasive”, “bad faith”: federal judge slams health insurance lawyers for stalling suit by docs [Phila. Inquirer; Plus: their side @ Law.com]

  • Plastic water guns draw ire of politicos in Albany, N.Y. [Times-Union via Nobody’s Business]

  • High lawyers’ fees said to be pricing middle class Canadians out of the justice system, but it must be said the numbers cited sound pretty low by U.S. standards [Maclean’s]

  • Flickr makes it easy to grab and reuse strangers’ photos, and legal sorrows ensue [NY Times]

  • Jack Thompson tries to get federal judge Jordan removed from hearing one of his lawsuits against the Florida Bar [GamePolitics.com; & yet more]

  • New at Point of Law: trial lawyers deem “slanderous” ads featuring fictional law firm of Sooem, Settle & Kashin; Business Week cover story on wage/hour suits; John Edwards comes out again for “certificate of merit” med-mal reform; replace your old kitchen cabinets and get lead paint companies to pay; and much more;

  • Some New York lawmakers think secondhand smoke is just as bad for you as actually being a smoker [Siegel via Sullum; more on recent smoking bans, complete with culturally-sensitive hookah exception]

  • “Disability Math” video explores paradox of how employment fell among handicapped after enactment of the ADA [Dubner, Freakonomics; more (now with more direct Freakonomics link)]

  • Class-action lawyers sue over kids’ Pokémon card trading craze, claiming it’s illegal gambling [Eight years ago on Overlawyered; Milberg Weiss angle here]

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September 2007 Class Action Watch

In the latest issue of the Federalist Society’s Class Action Watch, Mark Behrens and Christopher Appel look at recent rulings from the New Jersey and Missouri Supreme Courts that reject lead paint public nuisance claims. James Beck looks at the American Law Institute’s “Principles” projects. Brian D. Boyle and Julia A. Berman look at fact-based scrutiny in securities and antitrust actions. Jessica D. Miller and Nina Ramos look at fluid recovery. Kenneth J. Reilly and Frank Cruz-Alvarez look at an Eleventh Circuit case that may have set a new standard for federal diversity jurisdiction. Last, but not least, there is a front-page article from me analyzing an omission in the Fair Credit Transactions Act (FACTA) that might provide a substantial windfall for the plaintiffs’ bar.

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“Everybody, that is, except the guys who did it.”

Mark Steyn throws down the gauntlet:

Last week the New York Times carried a story about the current state of the 9/11 lawsuits. Relatives of 42 of the dead are suing various parties for compensation, on the grounds that what happened that Tuesday morning should have been anticipated. The law firm Motley Rice, diversifying from its traditional lucrative class-action hunting grounds of tobacco, asbestos and lead paint, is promising to put on the witness stand everybody who “allowed the events of 9/11 to happen.” And they mean everybody – American Airlines, United, Boeing, the airport authorities, the security firms – everybody, that is, except the guys who did it.

According to the Times, many of the bereaved are angry and determined that their loved one’s death should have meaning. Yet the meaning they’re after surely strikes our enemies not just as extremely odd but as one more reason why they’ll win. You launch an act of war, and the victims respond with a lawsuit against their own countrymen.

But that’s the American way: Almost every news story boils down to somebody standing in front of a microphone and announcing that he’s retained counsel. Last week, it was Larry Craig. Next week, it’ll be the survivors of Ahmadinejad’s nuclear test in Westchester County. As Andrew McCarthy pointed out, a legalistic culture invariably misses the forest for the trees. Sen. Craig should know that what matters is not whether an artful lawyer can get him off on a technicality but whether the public thinks he trawls for anonymous sex in public bathrooms. Likewise, those 9/11 families should know that, if you want your child’s death that morning to have meaning, what matters is not whether you hound Boeing into admitting liability but whether you insist that the movement that murdered your daughter is hunted down and the sustaining ideological virus that led thousands of others to dance up and down in the streets cheering her death is expunged from the earth.

(Mark Steyn, “No terrorism, just war?”, Orange County Register, Sept. 9; Anemona Hartocollis, “Little-Noticed 9/11 Lawsuits Will Go to Trial”, New York Times, Sept. 4; also to the point).

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Billion dollar cleanup

Overlawyered has been covering the Rhode Island lead paint trial for quite some time. A year ago last February, a jury found lead paint makers liable (and see links therein); on Monday, a Rhode Island judge issued a 197 page opinion (PDF) rejecting all the motions filed by the manufacturers, and upholding the jury verdict. Associated Press; Providence Journal. There will, of course, be an appeal.

It’s a case which fits well with the theme I mentioned yesterday, with all the elements of litigation as Robin Hood-style wealth redistribution:

  • Creative lawyering, to turn a non-case into a case: this is really a products liability case, but if it had been tried under that theory, the state would have lost. So the plaintiffs called lead paint a “public nuisance,” even though any harms here are identifiably private.
  • Irresponsible victims: The proximate cause of lead-paint-related injuries is the failure of homeowners and landlords to fix peeling paint. But we wouldn’t want to hold people responsible for maintaining their own homes.
  • Going after the deep pockets rather than wrongdoers: Homeowners can’t sue themselves, and landlords don’t have nearly as much money as Sherwin Williams and the other paint manufacturers? So of course the paint manufacturers are liable. Never mind that the paint was perfectly legal when it was sold, sometimes as long as 50 years ago or more. Never mind that the plaintiffs didn’t and couldn’t prove that any of the outstanding problem was caused by any of the defendants.
  • Unlimited liability, unrelated to any money made by the manufacturers for the products in question: the judge hasn’t even figured out how much this cleanup will cost, but he’s nonetheless sure that it’s reasonable to hold that the paint companies should have done this already. Estimates range from a billion dollars to several billion, to clean up any remaining lead paint.
  • Dubious benefit to actual victims: people who have children affected by lead paint aren’t the ones who receive money as a result of this case.
  • Shades of the tobacco cases: private trial lawyers inducing the state to sue, and then then pretending to be acting on behalf of the public.

Of course, we get the obligatory disingenuous comments from the plaintiffs:

Jack McConnell, a lawyer representing the state, called the judge’s decision a “huge, huge victory for lead-poisoned children, homeowners and taxpayers.”

Except, of course, for taxpayers and homeowners who are shareholders in paint companies. Or taxpayers and homeowners who are looking to buy products whose prices will have to rise to cover the costs of lawsuits that may spring up decades down the road because of some unforeseeable risks.

And how it’s a victory “for lead-poisoned children” is a mystery, given that the only outcome of this case is that the paint companies will have to pay for the costs of cleaning up homes. The children who have actually been poisoned do not see a cent from this judgment. Jack McConnell and Motley-Rice, the lawyers “representing the state,” will rake in a few hundred million dollars in contingency fees, though.

Walter Olson also comments at Point of Law.

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“Dangerous When in Power”

A March 2007 Reason article is a must-read for its historical description of how so many mass torts arise from the plaintiffs’ bar blaming deep-pocketed private industry for health catastrophes caused by government policy:

The wider conventional view [treats] hazardous products as a sort of standing reproach to capitalism: Businesses foist such products on us in search of profit, the narrative goes, while government protects us from them. And there is much in the asbestos debacle that does reflect discredit on private companies’ actions.

Yet the government, our alleged protector, has done much at all levels to promote products later assailed as needlessly unsafe, from tobacco to lead paint, from cheap handguns to Agent Orange. Often the state is at least as aware of the risks as the businesses that distribute the product, and in at least as good a position to control or prevent them. But-shaped and propelled by the incentives provided by our litigation system-our process of organized blame hardly ever puts the government in the dock.

And, hey: it’s written by Walter Olson, so you know it’s going to be good. Read the whole thing. (Cross-posted at Point of Law.)

(P.S. by W.O.: Thanks, Ted — the piece is being linked and discussed at quite a few places around the blogosphere, including Glenn Reynolds, Reason “Hit and Run”, The Economist’s Free Exchange, Bill Childs, Byron Steir at Mass Tort Litigation Blog, David Hardy’s Arms and the Law, and Prof. Bainbridge).

Plus: And yet more, from business historian (and friend) John Steele Gordon at the American Heritage blog.

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