McConnell Voted Out of Senate Judiciary with Support from Sen. Lindsey Graham

Despite heavy lobbying by corporate America and their hired guns, John McConnell Jr., a nominee to the United States District Court for Rhode Island, advanced out of the Senate Judiciary Committee on Thursday, by a vote of 13-6.  McConnell received the support of one Republican: Sen. Lindsey Graham.

Business interests, including the Chamber of Commerce nominally opposed McConnell’s nomination because of McConnell’s role as a lead attorney representing the State of Rhode Island in a public nuisance lawsuit that sought to protect children from the toxic effects of lead-paint poisoning by suing lead-paint manufacturers.  The Alliance for Justice has produced a memorandum regarding McConnell’s involvement in the RI Lead paint case.

U.S. District Judge for the District of Rhode Island Nominee John J. McConnell, Jr.:

Memorandum on Rhode Island v. Lead Industries Association

Executive Summary:

Since the announcement of his nomination to serve as a United States District Judge for the District of Rhode Island, John McConnell has come under attack from the Chamber of Commerce for his involvement in State v. Lead Industries Association.1 In particular, he has been criticized for his role as a lead attorney representing the State of Rhode Island in a public nuisance lawsuit that sought to protect children from the toxic effects of lead-paint poisoning by suing lead-paint manufacturers. McConnell’s detractors claim that applying public nuisance doctrine to product manufacturers is somehow a radical departure from mainstream law. Nothing could be further from the truth – public nuisance is a doctrine lawyers have relied upon going back to the 12th century to address an array of public wrongs. Here, the State sought to provide redress for the thousands of Rhode Island children suffering from the effects of leadpaint toxicity caused by pervasive presence of lead-paint products.

Public nuisance is a commonly-applied legal theory that provides redress for the unreasonable interference with a right common to the public. Applying this theory, the civil jury found the lead-paint manufacturers liable and ordered them to abate the harmful effects of their actions. That judgment was affirmed by the Rhode Island Superior Court.2 The lead-paint manufacturers further appealed their case to the Supreme Court of Rhode Island, which used the case as an opportunity to severely limit the application of public nuisance doctrine. While the Supreme Court of Rhode Island acknowledged “the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning,”3 they reversed the verdict, laying down a new rule that public nuisance law does not extend to lead-paint poisoning, thus insulating the manufacturers from liability.4

This memorandum provides an overview of the Lead Industries Association case in order to shed light on the accusations that McConnell’s role in the case was in any way improper.

Overview of the Case:

In 1978, the U.S. Consumer Product Safety Commission (CPSC) banned paint containing lead and products with lead-paint such as toys and furniture in order to “reduce the risk of lead poisoning in children who may ingest paint chips or peelings.”5 In 1999, seeking to protect ordinary Rhode Islanders from the harm caused by corporations that manufactured dangerous lead-containing products, then Attorney General Sheldon Whitehouse initiated a complaint against several lead-paint manufacturers—the first state-backed lawsuit related to lead-paint poisoning. Whitehouse hired two law firms—Motley Rice and Decof & Grimm— to prosecute the case on behalf of the State on a contingent fee basis.6 The complaint alleged that several lead pigment manufacturers and their trade association had “an extensive history of . . . conduct consisting of misrepresentations and concealment of evidence regarding the hazards of lead.”7 The State argued that this conduct “caused or substantially contributed to the creation of [a] public nuisance” and sought to require the lead-manufacturers to abate the nuisance they had created.8

The State laid out in detail the basis for the nuisance claim. It alleged that the lead-paint manufacturers “knew or should have known” of the health risks posed by lead in pigment, but that they nonetheless created, marketed, made available, and profited from the sale of this toxic substance.9 Furthermore, according to the State, the manufacturers neglected to warn citizens of the dangers posed by lead, did not sufficiently monitor and test for the safety of their products, and either concealed knowledge of the threat posed or falsely presented the paint as being safe. All of these actions created “an environmental hazard that continues and will continue to unreasonably interfere with the health, safety, peace, comfort or convenience of the residents of the State . . . .”10 At trial, a jury made sufficient findings of fact to rule in favor of the State’s public nuisance claim – undermining opponents’ argument that the suit was frivolous.

The jury was asked to consider whether the lead-paint manufacturers had created a public nuisance— “something that unreasonably interferes with a right common to the general public… [and] with the health, safety, peace, comfort or convenience of the general community.”11 The jury also needed to decide whether the manufacturers should be required to abate the nuisance.12 The jury found against the lead-paint manufacturers on both counts.13 The lead-paint manufacturers appealed the holding of the trial court, but lost at the Superior Court level.

The lead-paint manufacturers appealed again and the Rhode Island Supreme Court reversed and held in their favor. The Court rested its decision on two lines of reasoning – that the lead-paint manufacturers had not interfered with a public right, and that they were not in control of the paint at the time it caused harm to Rhode Island children.14

In order to overturn the jury’s verdict, the Court laid down a new rule: that freedom from lead-paint poisoning is not a public right.15 Instead, the Court limited the definition of a “public right” to an “indivisible resource shared by the public at large, such as air, water, or public rights of way.”16 The Court reasoned that the claimed right to be free from lead-paint poisoning was similar to a claimed right to be free from the dangers caused by the presence of illegal weapons, a theory rejected by Supreme Court of Illinois.17 While the Rhode Island Supreme Court’s new rule rejected the notion that freedom from lead-paint poisoning was a public right, the Superior Court had reasoned that a public right “involves burdens that all citizens of Rhode Island have to bear,” and that the jury was entitled to find that lead-paint poisoning met this standard.18 The Court of Appeals held that the trial court properly instructed the jury that a public right was one that was “collective in nature” and belonging to “the community at large.”19 In the absence of prior Rhode Island Supreme Court precedent, the Superior Court and the State’s interpretation of a “public right” was reasonable, despite the fact that it was ultimately rejected by the Rhode Island Supreme Court.

Additionally, the Rhode Island Supreme Court declared that the manufacturers could not be liable for the harm caused by the lead-paint unless they “controlled that pigment at the time it caused injury to children in Rhode Island.”20 But as the Superior Court noted, under thenexisting Rhode Island law, as well as the Restatement (Second) of Torts, control of specific property was not required to find liability, “so long as it can be shown that the Defendants substantially participated in the activities which caused the public nuisance…”21 While the Rhode Island Supreme Court decided to establish control as a fundamental element of a public nuisance claim, there was no way that McConnell, the other attorneys involved, or the Superior Court could have anticipated this ruling.

The Rhode Island Supreme Court’s decision relied in large part upon a New Jersey Supreme Court case which rejected a public nuisance claim against lead-paint manufacturers.22 The Court noted that a products liability cause of action would have been a more appropriate argument, expressing concern that allowing a public nuisance claim would open a broad new field of manufacturer liability.23 It also noted that legislative remedies were available to provide redress for persons harmed by lead-paint from landlords “who are in control of the lead pigment at the time it becomes hazardous, [and] are responsible for maintaining their premises and ensuring that the premises are lead-safe.” In light of the fact that the statute of limitations for a products liability action had lapsed, the Court’s decision effectively insulated the lead-paint manufacturers from any liability.

The Supreme Court also addressed a complaint from the lead-paint manufacturers that the Attorney General acted improperly by hiring outside counsel to work on the case. The Court rejected this argument and held that it was appropriate so long as the Attorney General “retains absolute and total control over all critical decision-making.”24 Stating the beneficial nature of such arrangements, the Court declared “it is our view that the ability of the Attorney General to enter into such contractual relationships may well, in some circumstances, lead to results that will be beneficial to society—results which otherwise might not have been attainable.”

1 “Since it was founded 12 years ago, the U.S. Chamber Institute for Legal Reform (ILR) has never opposed anyone nominated for a federal district court judgeship. That changed this month, when the chamber joined with other business organizations in recommending to the Senate Judiciary Committee that it reject the nomination of John J. ‘Jack’ McConnell to serve a lifetime appointment on the U.S. District Court for Rhode Island.” Lisa Rickard, Oped., PROVIDENCE J., McConnell Is Unqualified to Sit on the Federal Bench in R.I., May 26, 2010.

2 Lead Indus. Ass’n, Inc., at 317.

3 Lead Indus. Ass’n, 951 A.2d at 435.

4 Id. 2

5 Press Release, U.S. Consumer Product Safety Commission, CPSC Announces Final Ban on Lead-Containing Paint (Sept. 2, 1977), available at http://www.cpsc.gov/cpscpub/prerel/prhtml77/77096.html.

6 Lead Indus. Ass’n, 951 A.2d at 469. See also John O’Brien, Rhode Island not Ordered to Pay Up in Failed Lead Paint Suit, LEGALNEWSLINE, May 26, 2010, http://www.legalnewsline.com/news/227338-rhode-island-not-orderedto- pay-up-in-failed-lead-paint-suit.

7 State of Rhode Island v. Lead Indus. Ass’n, Inc., C.A. No. 99-5226, 2001 R.I. Super LEXIS 37, at 1 (R.I. Super. 2007).

8 Id. at 1 (quoting Jury Verdict Form, Question 2, Feb. 22, 2006). Other claims against the manufacturers, including negligence, unjust enrichment, indemnity, and conspiracy, were later dismissed. Id. at 3.

9 Lead Indus. Ass’n, 951 A.2d at 440.

10 Id. at 453.

11 Id. at 442.

12 Id.

13 Id.

14 Id. at 443.

15 Id. at 453.

16 Id. at 453.

17 Id. at 454 (citing Beretta U.S.A. Corp., 821 N.E.2d 1099, 1114). The Court specifically stated, “[t]he right of an individual child not to be poisoned by lead paint is strikingly similar to other examples of nonpublic rights cited by courts.” Id.

18 Lead Indus. Ass’n, 2007 R.I. Super. LEXIS 32, at 149-150.

19 Lead Indus. Ass’n, 2007 R.I. Super. LEXIS 32, at 149-150.

20 Lead Indus. Ass’n, 951 A.2d at 455.

21 Lead Indus. Ass’n, 2007 R.I. Super. LEXIS 32, at 148.

22 Lead Indus. Ass’n, 951 A.2d at 440 (quoting In re Lead Paint Litigation, 924 A.2d 405, 494 (N.J. 2007).

23 Id. at 457.

24 Id. at 475.

25 Id.

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One response to “McConnell Voted Out of Senate Judiciary with Support from Sen. Lindsey Graham

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