NPCA Submits Amicus Brief in Rhode Island

As part of its new Legal Issues Tracking and Amicus Program, on Jan. 31, NPCA submitted an amicus brief in support of the appellants in Providence Superior Court in the State of Rhode Island vs. Lead Industries Association, Inc., et al. In this brief, NPCA focused on several fundamental errors in the trial court’s rulings including allowing an improper public nuisance theory, and endorsing an unprecedented "no-cause" theory of liability.

The association's amicus brief confronts the trial court's elemental misapplication of a hazardous waste storage case, Wood v. Picillo, which it relied on as a basis to misinstruct the jury to find liability that would be predicated merely on the "nature of the injury" (e.g. public fear of dangerous lead exposure), by which the state would not have to prove any "conduct causation" by the defendant historical lead pigment producers.  Wood involved ultrahazardous activity — 50 foot flames from chemical explosions, and "sink holes emitting chemical odors opened in the earth"; groundwater contamination; a "chemical nightmare" —  which clearly constituted "unreasonable interference with a right common to the general public."

NPCA argued that the trial court ignored the requirements that a public nuisance involve a public right, like the situation in the hazardous waste site and other Rhode Island pollution cases; and that the defendants conduct (here, selling a legal, ordinary product raw material more than one-half century ago!) be shown to be an “intentional and unreasonable interference” with that public right (e.g. to public health and safety).  The fact is that the trial court never required any proof that any of the defendants' conduct caused any injury in the state, much less that it was the proximate cause of any such injury, in a cause of action involving individual dwellings, which does not constitute a public nuisance. 

“Selling lead pigment in our nation over 50 years ago does not quality for ultrahazardous conduct according to Wood and its progeny, and the situation of potential dangerous lead exposure inside dwellings, often private residences, does not qualify as a public nuisance, in any event,” explains NPCA Vice President and General Counsel Tom Graves.

NPCA argued that the context-specific, strict liability approach in Wood cannot be extended to actions premised on injuries or 'public nuisances' allegedly caused by defective products. As the Rhode Island Supreme Court has already explained: 'Strict liability attaches when a plaintiff's injuries are proximately caused by some ultrahazardous or abnormally dangerous activity, not material. (Slewyn v. Ward, 2005).

The Legal Issues Tracking and Amicus Program, which establishes a legal issues tracking system to stay abreast of the legal issues most profoundly affecting industry, overseen by NPCA’s Corporate Counsels Advisory Group.  Through the Legal Tracking System, NPCA will identify 2-3 cases every year in which it will file an Amicus or “friend” of the court brief to underscore the industry’s point-of-view in a matter, in doing so, seeking to prevent court decisions that establish dangerous precedent or overturn such precedent where it currently exists.

Contact: NPCA’s Tom Graves for more information.

Source: April 2008 Coatings, posted 2/29/08