The Pursuit of Justice, or Money?

By Joe Nocera
New York Times
December, 10, 2007

"If I don’t bring the lead paint industry to its knees in three years, I will give them my boat."

So declared Ronald L. Motley to The Dallas Morning News in the fall of 1999 — and why not? In addition to being the owner of a very large yacht, Mr. Motley is also one of the country’s pre-eminent plaintiffs’ lawyers, the titular head of the 70-lawyer firm Motley Rice, based in Charleston, S.C.

At the time of that interview, he was on top of the world. He had just spearheaded the drive against the tobacco industry, resulting in a $246 billion settlement with the 50 states. His fees ran into the hundreds of millions, if not billions, of dollars.

"Retire?" he scoffed in that same interview. "There are too many corporate crooks out there manufacturing dangerous products and injuring kids as a result." He vowed to use his tobacco winnings to go after more bad guys, like those evildoers populating the lead paint industry. And that he has.

In the wake of the Merck-Vioxx column I wrote a few weeks ago — in which I took the position that plaintiffs’ lawyers aren’t always on the side of the angels — I was deluged with e-mail messages from readers who said, in effect, "Oh yes they are!"

And up to a point, I would agree: who can argue with the billions of dollars the plaintiffs’ bar extracted from the big banks that enabled Enron? (I can’t help noting, however, that the lead lawyer in the Enron lawsuits, William S. Lerach, will soon be in prison, having pleaded guilty to a felony directly related to the way he used to practice law.)

But for every Enron, there are cases where lawyers abuse the legal system. In these cases, litigation can look more like an income- redistribution racket than a search for justice. So I come forward this morning with a new example of litigation run amok. I offer you Mr. Motley’s lead paint litigation.

Lead is poisonous. We all know that, though a century ago, we thought that people needed to have a lot of lead in their systems for it to present a health problem. But now we also know that lead in the bloodstream, even in small doses, has the potential to cause problems in babies. Today, any child who has more than 10 micrograms per deciliter is considered to have an elevated blood lead level — though under these modern standards, the entire baby boomer generation had elevated blood lead levels as children.

Here’s what else we know. We know how to get the lead problem under control. In the mid-1970s, the government passed laws eliminating lead in gasoline, paint and tin cans. (Lead in gasoline was by far the biggest cause of elevated blood lead levels.) And states and cities passed laws mandating that landlords keep their properties freshly painted — so that old lead paint chips would not fall off and be eaten by children.

"Basically, what we have succeeded in doing in this country is reduce the incidence of lead poisoning by 90 percent and the blood lead levels by 90 percent," said Dr. Philip J. Landrigan, the head of the Department of Community and Preventive Medicine at Mount Sinai School of Medicine. He told me that this constituted "a great public health triumph." Despite this belief, however, Dr. Landrigan has testified as an expert witness on behalf of plaintiffs.

Although lead was outlawed in paint in 1978 — and though many industry players had removed it even earlier than that — the lawsuits began in 1987. These were not, however, Motley Rice lawsuits. Most were product liability suits that claimed the pigment manufacturers knew that lead was dangerous and had therefore knowingly harmed the consumer.

The cases went nowhere, for two primary reasons. First, it was hard to make the case in court that the companies had done anything wrong. Yes, there were "bad documents"— there are always bad documents — but most of them were a half a century old, as the science around lead was emerging in this country. They mainly showed that the Lead Industries Association was less than keen about embracing the emerging consensus about the dangers of lead to small children. But the industry didn’t try to cover up the science, and as the science became clearer in the 1950s, the industry voluntarily took lead out of interior paint. I realize that many people think companies should rush to abandon legal products at the first whiff of a problem, but if that were really the standard, the shelves would be bare.

The second problem is that it was impossible to know which manufacturer’s paint had been used on a particular house. For most judges, that was the real deal-breaker. For as long as there has been product liability law, it has been rooted in the notion that in order to sue a wrongdoer, you have to know who the wrongdoer is. Plaintiffs’ lawyers tried to argue that since all the manufacturers used lead pigment, they were all guilty — and their guilt should be proportional to their market share. But aside from Wisconsin, this was universally rejected by the courts.

And there things stood until Motley Rice arrived on the scene. In Rhode Island, where Motley Rice has an office — and lots of political ties — the firm agreed to join forces with the attorney general’s office, just as it had in the tobacco case, and take 16.7 percent of the proceeds if its side won. A lawyer named Fidelma Fitzpatrick came up with the most novel theory yet: the state should sue the companies on the ground that lead paint was a "public nuisance." It was so far-fetched that another lawyer in the office would later tell a reporter that, at first, they called it Fidelma’s Wacky Idea.

Ms. Fitzpatrick explained to me that since the substance was still so prevalent, it was a public nuisance and therefore all the companies were guilty of creating that nuisance. See how easy that was? Suddenly, the case was no longer about an individual who had been harmed by lead — or an absentee landlord who hadn’t maintained his property. It was about those dastardly pigment makers who had put lead in paint.

Armed with this new theory, Motley Rice went to trial in Rhode Island in 2002. Hung jury. Then, in 2006, the case was retried — and Motley Rice won. "Evidence?" laughed Jane Genova, a blogger who has followed the case closely. "There was no evidence. The judge’s instructions said you didn’t need evidence." If the jurors found that lead paint created a public nuisance, then they should find for the plaintiffs. Sure enough, they did. (It didn’t help that the companies didn’t put on a defense, so sure were they of victory.)

In the last year, it’s gotten even worse for the defendants, at least in Rhode Island. The state, with the help of its friends at Motley Rice, recently unveiled an abatement plan that would require the companies to pay for the inspection of a staggering 240,000 homes as well as thousands of other structures like hospitals and day care centers, and remove lead from most of them. The estimated cost for doing this — almost surely understated — is $2.4 billion, with a hefty chunk of that going to the lawyers, of course. Never mind that for the vast majority of homes, the far better and cheaper solution is simply to keep them maintained. Or that this plan has been ginned up even though the case is still on appeal.

Meanwhile, to capitalize on its success in Rhode Island, Motley Rice and other big-time plaintiffs’ lawyers have raced all over the country, trying to get other jurisdictions interested in suing the same defendants on the same grounds. Fortunately, they have had less luck. This past summer, the public nuisance theory was rejected by high courts in New Jersey and Missouri. In Wisconsin, two high-profile trials were held this year; the plaintiffs lost them both.

Still, Motley Rice has cases going in Ohio, California and Wisconsin. "I think New Jersey is going to be an aberration," Ms. Fitzpatrick said. She made it sound as if her firm remained undeterred — since, after all, it is on the side of the angels. "There is no doubt they knew," she said of the companies. When I brought up her contingency fee, she bit my head off. "The real story here is the amount of money the defendants have spent defending these cases," she said. "We’re the only group of lawyers who haven’t been paid in 10 years." No wonder she’s still at it.

But what are the companies supposed to do? Let Motley Rice bankrupt them because of something they did three decades ago that was perfectly legal? When I asked Dr. Landrigan why he was working for the plaintiffs he said: "The removal of paint from apartment buildings is expensive. States and cities are chronically underfunded. So basically, getting a judgment against the companies is a way to get revenue to do the removal." You will never hear a purer distillation of the real motivation for bringing these suits. The companies have lots of money, so make them pay — no matter what the evidence.

One thing I couldn’t help wondering was why the gasoline makers weren’t subject to these kinds of lawsuits. After all, gasoline, not pigment, was the primary cause of elevated blood lead levels back in the day. When I mentioned this to David Rosner, a Columbia professor who has served as an expert witness for the plaintiffs, he reassured me.

"I think there might be a suit like that filed next week," he said.

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