Suing the Tobacco and Lead Pigment Industries by Gifford Donald G.;

Author:Gifford, Donald G.;
Language: eng
Format: epub
Publisher: University of Michigan Press

SOLVING COMPLEX INFRASTRUCTURE PROBLEMS WITHOUT ALL PARTIES BEFORE THE COURT

The blame game between pigment manufacturers and property owners manifested itself in yet another way at the trial court, when the defendant-manufacturers tried to join Rhode Island’s state public housing authority and more than three hundred thousand unnamed private property owners as third-party defendants in the litigation.80 The manufacturers alleged that the property owners, instead of the manufacturers, should be forced to abate the public nuisance and that if the manufacturers were to be held liable, they should be reimbursed, in whole or in part, by the property owners. The third-party complaint alleged that the property owners “failed to maintain their properties, disregarded their duties under federal or state law to keep any lead product on their properties in a safe condition, have ignored other duties as property owners and managers to protect children residing in their properties from lead hazards, or have failed to comply promptly with notices of health violations at their properties.”81 The state accused the manufacturers of wanting to try the case on a “property-by-property” basis, apparently for two reasons. First, this approach would enable the defendants to argue that the state could not establish cause in fact because it could not prove which defendant(s) made the pigment contained in a particular house. Second, focusing on each property individually would facilitate the defendants’ efforts to prove that it was the owner’s poor property maintenance that had substantially contributed to the conditions that caused childhood lead poisoning.82 During the next two years, the parties battled over discovery of facts related to specific properties83 and over whether property owners should be notified of the lawsuit, since their properties arguably could be declared to be part of a public nuisance.84 In the meantime, in February 2002, Judge Silverstein set aside the defendants’ motion and announced that the trial would proceed in phases, with any proceedings against third-party property owners delayed until after a determination of the manufacturers’ liability for abatement of the public nuisance. Eventually, Judge Silverstein prohibited the defendants from introducing property-specific evidence at trial.85

On one hand, the addition of three hundred thousand third-party defendants to an already complex legal action clearly was impossible. On the other hand, this ruling left unresolved the legitimate question of whether property owners, at least those who failed to maintain their properties and who thus contributed to childhood lead poisoning, should bear some or all of the legal responsibility for the risks posed by lead-based paint hazards. Only by defining the public nuisance as the presence of lead contained in paint and not as the risks that contributed to childhood lead poisoning did the trial court avoid (or at least defer) this extremely difficult issue. Further, if the courtroom was to be the forum in which accountability for causing childhood lead poisoning was to be resolved, it was unsound, as a matter of both law and public policy, to exclude consideration of the malfeasance and nonfeasance of property owners. Their failure to prevent

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