Lead Pain Reversal in RI

The Supreme Court of Rhode Island reversed in State of Rhode Island v. Lead Industries Association.  The opinion below had imposed liability on lead paint manufacturers under a public nuisance theory.  The RI Supreme Court rejected that theory of liability.  I heard  the story on NPR's Marketplace.  You can find the RI Supreme Court opinion here.  Some commentary from the folks at the Drug and Device Law Blog (who, given that one of them represents defendants in lead paint cases, are very pleased) here. 

The problem with cases against lead paint manufacturers is that its impossible to prove that the lead paint present in buildings today comes from a particular company.  The problem from the defendant's perspective is that perhaps their lead paint didn't cause this damage.  The problem from the plaintiff's perspective is that they were damaged by some lead paint, they just can't prove whose lead paint.  Its really an issue of cost shifting in instances of uncertainty - who should pay for the cost of widespread distribution of substances like lead paint that cause damage, individuals or manufacturers?   The system generally imposes those costs on individuals because our system of torts is particularistic and doesn't recognize the concept of risk very well.  So as a general matter, a tort plaintiff has to prove that this defendant caused this particular harm, rather than this defendant participated in increasing the risk of the harm occuring.

I think the only state that imposes this type of global liability on lead paint manufacturers is Wisconsin, which as I recall was based on a slightly different theory.   There are cases pending in California and Ohio.

ADL