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Washington Examiner
April 28, 2006

Lead paint con may be coming to Maryland next

We've noted before in this editorial series how trial lawyers are constantly dreaming up novel legal theories so they can sue corporations and collect huge contingency fees.

Well, now they’re at it in Maryland, pushing legislation that would allow lawsuits against former manufacturers of lead-based paint. HB 1394 would have allowed lawsuits based on a theory of "market share liability." The House Judiciary Committee wisely killed that bill before the legislature adjourned.

But a companion bill, HB 1447, was left hanging on the vine and could be revived in the next legislative session. It would allow former makers of lead-based paints to be sued on a "public nuisance" theory. To see that theory in action, look at what’s going on in Rhode Island right now.

In 2002, the state sued four companies that formerly produced lead or lead-based paints. Thousands of public and private buildings in Rhode Island have lead paint dating back to the 1930s. In February, a jury found that this constitutes a "public nuisance."

Now a jury will decide whether the defendant companies must pay for cleaning up the old paint and educating the public. This is where the story gets scary. During the trial, the state presented no evidence that paint from any of the defendant companies was used in Rhode Island. Even more mind-numbing, the judge told the jury that this doesn’t matter.

This is straight from the judge's instructions: "You need not find that lead pigment manufactured by the defendants ... is present in particular properties" to hold them liable for "substantially contributing to ... a public nuisance ... nor do you have to find that the defendants ... sold lead pigment in Rhode Island" to conclude that they are "a proximate cause" of the nuisance.

Got that? If you sold lead paint in Idaho 50 years ago, you could be held responsible for causing Rhode Island's problem today. By the way, no money recovered would pay medical expenses of anyone actually harmed by lead in paint. It would pay only for cleanup and public education. And for lawyers, of course.

This shakedown wasn't initiated by the state of Rhode Island. A private trial firm, Ness Motley, suggested the idea to the attorney general in 1999. The AG promptly turned the whole show over to Ness Motley, guaranteeing them 17 percent of damages plus expenses. (Ness Motley made fortunes in a similar deal with state attorneys general in tobacco suits.)

Thus is the game played and the legal system corrupted. Pass a bill — any old legal theory will do — that allows lawsuits to go forward, and the trial lawyers will take it from there. And brother, do they take it.

If Maryland legislators have any sense at all, they'll keep the lead paint con out of the Old Line State.

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