Mass Tort Litigation Blog

Mattel CEO Appears Before Senate Panel

Article on cnn.com -- Mattel CEO contrite before Senate, by Parija Kavilanz.  Here's an excerpt:

Mattel CEO Robert Eckert made another public apology Wednesday over unsafe toys that were made in China, and sought to convince a Senate panel that the company was determined to avoid more recalls in the future.

"On behalf of Mattel and its nearly 30,000 employees, I apologize sincerely," said Eckert, who testified before a Senate Appropriations subcommittee on toy safety.

"I can't change the past, but I can change the way we do things," he said.

Referring to Mattel's string of big toy recalls over the summer due to lead paint hazards and choking risks, Eckert blamed Mattel's vendors in China. "As to lead paint on our products, our systems were circumvented, and our standards were violated," he said.

"What has made these events particularly upsetting is that Mattel has long had in place what we believe are some of the most rigorous safety protocols in the toy industry," he said.

Going forward, Eckert said Mattel had two jobs, to prevent what happened from happening again and to let consumers know about recalls at the earliest.

BGS

Lead Paint Litigation Downturn

According to an article in this week's National Law Journal, lead paint litigation is on the decline.  The article by Amanda Bronstad -- Lead Paint Litigation is Beginning to Fade -- points to recent rulings in New Jersey, Missouri, Wisconsin, and Ohio that have dimmed plaintiffs' hopes.  Here's an excerpt:

A series of recent rulings have stymied public nuisance claims made by dozens of cities and counties to recover damages related to lead paint, which has been found to cause learning disabilities in children.

In June, the New Jersey Supreme Court found that public nuisance claims could not be used in a lead paint case brought by more than 20 counties and cities. That same month, the Missouri Supreme Court ruled that the city of St. Louis failed to prove that the paint companies in its suit caused a public nuisance. Also, a Milwaukee jury in June concluded that lead paint was a public nuisance but that the defendant, NL Industries Inc., was not liable for the damages.

At the same time, a decision by the Ohio Supreme Court this month to uphold a law that limits damages in public nuisance claims could affect more than a half-dozen lead paint cases brought by several cities and the state's attorney general.

HME

Lead Paint Defendants Win Two Appeals

It was a good week for the paint industry.  Last week, both the New Jersey Supreme Court and the Missouri Supreme Court handed down decisions rejecting public nuisance claims against lead paint manufacturers.

The New Jersey Supreme Court decision provides a lesson in differing perspectives on public policy torts.  The majority emphasized the separation of powers concern (that the state legislature had passed a statute concerning lead paint, and it would overstep the judiciary's bounds to permit a liability theory that the legislature had not embraced) and the slippery slope argument (that to permit plaintiffs' public nuisance claim would be to create an unbounded tort).  The dissent (Chief Justice James Zazzali, in his final week on the bench, joined by Justice Virginia Long) emphasized the seriousness of the lead paint problem and the need for common law doctrines to evolve to achieve justice in a changing world.

After the 1998 tobacco settlement with the state attorneys general, some people predicted an era of massive litigation by states and municipalities against harm-causing industries.  We've seen some such litigation -- notably over handguns and lead paint -- but for the most part it hasn't had much traction.  Rhode Island's lead paint suit resulted in a plaintiff victory at the trial level, although the appeal to the Rhode Island Supreme Court pending.  Last week's Missouri Supreme Court decision, with the New Jersey decision several days later, leaves the Rhode Island case looking more like an anomaly than a front-runner.

HME

States Revise Policies on Outside Counsel

In a number of mass torts -- including tobacco, handguns, lead paint, and Oxycontin -- states and municipalities have brought lawsuits for money damages, seeking compensation for funds spent responding to harms caused by the various products.  While some of these government entities have handled their own legal work, and other have received pro bono assistance from law firms, many of them have turned to outside counsel.  Indeed, many of the nation's most prominent mass tort plaintiffs' lawyers have represented states and municipalities in recent years.

An article in this week's National Law Journal -- AGs Review Hiring of Outside Counsel -- looks at states that are reviewing or revising their policies on such hiring:

Attorneys general in seven states -- some of whom have retained plaintiffs law firms to bring high-profile lawsuits involving lead paint and the painkiller OxyContin -- are instituting new policies or facing legislative pressure to make the hiring of outside legal counsel more transparent.

The changes come as several tort reform groups, particularly the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, have been appealing to attorneys general for more transparency and accountability in how they retain outside law firms.

Plaintiffs lawyers said the moves toward transparency are assaults by business groups on attorneys general who bring damaging cases against them.

In recent months, attorneys general in Ohio, New Jersey and California have instituted new policies that would require law firms to bid publicly for work or would reduce confidentiality in the hiring process.

Legislators in Mississippi and West Virginia recently introduced bills, backed by tort reform groups, that would create oversight committees to review contracts between the state's attorney general and law firms.

Other efforts in Kansas and Nevada are aimed at reducing the use of outside counsel.

The use of outside counsel by government plaintiffs has been controversial.  Some of the controversy pits the usual combatants making the usual arguments about tort liability.  Unsurprisingly, the Chamber of Commerce disfavors the use of contingent-fee outside counsel for state tort claims, while trial lawyer groups favor it.  But there are interesting aspects to the issue that are unique to government litigants.  In addition to pay-to-play concerns about links between public contracts and campaign contributions, the use of contingent-fee lawyers for government plaintiffs also raises separation of powers concerns because it allows attorneys general to sidestep the legislative branch's control of the purse strings.

HME

Blog Roundup

Civil Procedure Prof Blog has a post linking an article by Professor Steven Lubet on a recent Seventh Circuit opinion censuring lawyers for deposition misconduct.

Drug and Device Law Blog has a post on how the "municipal cost recovery rule" restricts government tort suits.

Food Law Prof Blog has a post about the FDA's creation of a new food protection position.

Point of Law has posts on the appeal of the Lipke evidentiary rule for asbestos cases in Illinois, and also interest by St. Louis in filing a lead paint action.

Torts Prof Blog has a post with links about the updates of labels on SSRIs.

BGS

Ohio Lead Paint Suit

At Point of Law, Walter Olson notes that Ohio has followed Rhode Island in pursuing public nuisance claims against lead paint manufacturers.  Five Ohio cities had previously filed lead paint suits.  Olson emphasizes the separation of powers problem that occurs whenever a state AG uses contingent fee lawyers to pursue litigation, bypassing legislative control over the purse strings.  The Motley Rice law firm represents the Ohio municipal plaintiffs as well as the state of Rhode Island, but according to this April 4 story in the Cleveland Plain Dealer, the Ohio attorney general has not yet decided whether the state will be represented by Motley Rice.

HME

Judge Denies Motion for New Trial in RI Lead Paint Case

Article in the Wall Street Journal -- Judge Affirms Verdict Against Lead-Paint Makers, by the Associated Press.  Here's an excerpt:

A judge on Monday ordered three former lead paint manufacturers to clean up contamination in Rhode Island and said he would appoint a special master to advise him on exactly what the companies should be required to do. Lawyers and financial analysts have said the cleanup could cost more than $1 billion.

The decision by Providence Superior Court Judge Michael Silverstein marks a major step forward in the state's lawsuit to force the companies -- Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC -- to clean up properties that contain toxic lead paint.

A jury last February found the three manufacturers liable for creating a public nuisance, and Judge Silverstein's 197-page decision affirms that verdict. Judge Silverstein did not predict a dollar figure or specify what the companies might have to do to fix the problem.

"Today's final ruling is validation of our long fight to protect the public health and to ensure that our hardworking taxpayers no longer have to solve the problem themselves," Attorney General Patrick Lynch said in a written statement.

Judge Silverstein also rejected the companies' motion for a new trial, saying the state presented enough evidence to support the jury's verdict. The companies said they plan to appeal to the Rhode Island Supreme Court.

BGS

New Jersey Lead Paint Case

Article by Kate Coscarelli in the Star-Ledger -- Lead-paint case reaches top court -- concerning last week's New Jersey Supreme Court argument in the lead paint litigation:

Yesterday, the Supreme Court of New Jersey heard arguments in a high-stakes case pitting a group of local government entities against the companies that made lead pigment and paint over who should pay to remove the stuff from homes and apartments and treat lead-poisoned residents.

In the case, which has attracted national attention, 22 New Jersey towns and four counties are trying to sue the manufacturers and distributors of lead paint. The issue is whether the towns and counties have "inherent police powers" -- in addition to the other powers the Legislature has granted to clean up lead paint -- to sue to stop a public nuisance, such as a health threat.

...

The towns and counties sued in 2001. A Middlesex County judge dismissed the suit before trial almost four years ago, saying local governments had overstepped their boundaries in suing manufacturers. Last year, a state appeals court revived the suit, ruling that Newark, the counties of Essex and Union, and the others have a right to go to court to recoup costs against not just individual owners but the larger companies, too.

The plaintiffs are the towns of Bayonne, Camden, Collingswood, East Orange, Gloucester City, Highland Park, Hillside, Irvington, Jersey City, Linden, Newark, North Plainfield, Orange, Passaic, Phillipsburg, Plainfield, Roselle, Roselle Park, Union City, Union Township, West New York and West Orange, and the counties of Cumberland, Essex, Gloucester and Union.  The defendants are Atlantic Richfield, NL Industries, Millenium Inorganic Chemicals, Sherwin-Williams, American Cynamid, Cytec Industries, ConAgra and DuPont.

HME

Akron Drops Lead Paint Lawsuit

The city of Akron, Ohio earlier this month dropped its lawsuit against eight lead paint manufacturers.  Here's an Akron Beacon Journal article on the withdrawal, by way of Walter Olson's post today on Point of Law.  According to the article, three other Ohio cities -- East Cleveland, Lancaster, and Toledo -- still have similar lead paint suits pending, and Cincinnati and Columbus have discussed filing suits but have not yet done so.  Apparently, Akron's move was a voluntary dismissal without prejudice.  The city's law director explained that he wanted to step back and review the city's position, and that the city reserved the right to refile.

Olson also links to an interesting editorial in the Akron newspaper praising the city for rethinking the suit, and drawing a distinction between lead paint and tobacco:

Listen to advocates of the lawsuit, and you would think the paint industry belongs in a category with Big Tobacco. The comparison is unfair. For decades, tobacco companies denied the effects of smoking, hid unfavorable information and opposed efforts that could protect the health of consumers. For their part, the paint companies targeted by these lawsuits haven't made lead paint in years. They have not been defiant in a bid to protect their bottom lines. ...

[T]his is a housing problem that the city and property owners must address in the same way they contend with outdated electrical wiring or plumbing. They make the needed improvements. They don't run to court in pursuit of a payoff.

HME