Good news: On the state level, where plenty of the public-nuisance activity is taking place, there has been a major victory for companies which had been associated at one time with lead paint.
Here's the scoop. In the state of Maryland, the Judiciary Committee of the House of Delegates voted "unfavorable" on H.B. 1394. In effect, that killed the initiative that would have specifically recognized "market share liability" as an acceptable legal concept to pursue former manufacturers of lead-based paint.
Had the bill passed, all plaintiffs would have had to present in a lawsuit was evidence of three things:
- That lead-based paint caused the damages
- That the companies being sued were at the time making and selling lead-based paint. (In the Rhode Island lead paint trial, according to the instructions delivered by Judge Michael Silverstein to the jury, there need be no evidence that the companies actually manufactured, promoted or sold lead-based paint in the state of RI. Those jury instructions available from email@example.com).
- That the manufacturer breached a legally recognized duty in marketing the lead-based paint. (Ambiguity abounds here since lead-paint was sold in a very different era than the current time of expectations of pro-active corporate social responsibility and strict regulations to protect consumers).
But, still pending is companion nuisance bill in Maryland, H.B. 1441. This bill, if passed, could throw open to the door to trouble for not only former lead-paint companies but to any person or organization in Maryland accused of creating that poorly defined entity "public nuisance." That's because H.B. contains two key amendments to Maryland's real property statue.
If enacted, those amendments would allow community associations to pursue monetary damages for abatement of a nuisance. (As legal experts have wryly observed, a banana peel or bird droppings on the sidewalk can be argued to be a public nuisance). In addition, they would eliminate the language on the books in the property statue which does not allow lawsuits of lead-paint companies via the legal theory of nuisance.
If Maryland's H.B. 1441 is also deep-sixed, that could be a sign of common sense returning to our legal system. Some of the best commentary on that need for the return of common sense to litigation is being posted on Overlawyered.com and PointofLaw.com by Walter Olson.
Mr. Olson, who has been interviewed on this blog, is associated with the Manhattan Institute. He gave us that wonderful deconstruction of the "new litigation" in his book "The Rule of Lawyers." Before I went off to live-blog the RI lead paint trial I read "The Rule of Lawyers" twice. Another useful read by Mr. Olson is "The Litigation Explosion."
What I've found is that Mr. Olson's thinking updates Philip Howard's which rocked the world in 1994. Mr. Howard had published his manifesto "The Death of Common Sense: How Law Is Suffocating America."
In terms of the nuts-and-bolts of what's going on with lead paint and public nuisance litigation one of the most useful resources is the National Paint and Coatings Association (NPCA). This voluntary, non-profit trade association provides one-stop-surfing and easy-to-understand updates on lead-paint litigation and consumer issues on its website.
Side Note: Today when I needed more information about legislative developments in Maryland, the team at NPCA were smart, totally informed including providing suggestions on where else I should snoop around, and really worked up about these threats to the American business.