In this case, which garnered national attention, the Rhode Island Supreme Court agreed with NELF and others that the jury verdict below improperly imposed liability on lead pigment manufacturers for abatement of alleged lead paint hazards in Rhode Island buildings. The 2006 jury verdict was the first in the nation ever to hold lead pigment manufacturers liable on a public nuisance theory and a decision upholding that verdict would have vastly expanded public nuisance doctrine, with far-reaching potential ramifications for all who make, market, or sell products. The trial court rejected traditional limitations on common law public nuisance liability, including the need to prove both actual and proximate causation of the alleged harm and control by the defendants over the instrumentality allegedly causing that harm. In fact, there was no proof that any defendant’s product was even present in any Rhode Island building allegedly requiring abatement; and, of course, it is the building owners, not manufacturers who sold lead pigment to paint makers decades ago, who have had the ability to maintain and repair lead paint on building surfaces so as to prevent the risk of exposure.
Recognizing that an adverse decision in this appeal would have troubling implications that would not be limited to lead paint cases, NELF filed an amicus brief in support of the pigment manufacturers. NELF’s brief reviewed out-of-state decisions and academic commentary to demonstrate that a decision upholding the jury verdict would place Rhode Island far outside the mainstream. The Court, which relied heavily in its decision on the authorities cited in NELF’s brief, embraced the point, noting that Rhode Island’s definition of public nuisance is “largely consistent with that of many other jurisdictions … and several scholarly commentators” and concluding that “[t]he law of public nuisance never before has been applied to products, however harmful.” NELF had further argued that there was no deterrent value to imposing retroactive, unforeseeable, no-fault liability on parties who lawfully manufactured and sold products many decades before those products allegedly caused harm and that doing so would discourage product development that is critical to a vibrant economy.
The Court, agreeing that the Attorney General was attempting to skirt the proof requirements of product liability law and vastly expand public nuisance liability, concluded that “the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children.”