Former makers of lead paint went before the Rhode Island Supreme Court on Monday to prevent the state from honoring a contract with its private lawyers that is potentially worth tens of millions of dollars.
A jury in February held three manufacturers -- Sherwin-Williams Co., Millennium Holdings LLC and NL Industries, Inc. -- liable for creating a public nuisance with lead paint, which was banned in 1978 because it can cause serious health problems in children.
The verdict could cost the companies billions of dollars. A judge will decide later how much, if anything, the companies must pay to clean up the problem.
The attorney general's office hired two private law firms to press the suit, which it filed in 1999. It agreed to pay the outside lawyers more than 16 percent of whatever the state received if it won the case.
On Monday, a lawyer for the industry told justices the contract was unconstitutional because it gave outside lawyers a financial interest in the outcome of the case. Attorney John Tarantino said defendants have the right to know that lawyers representing the government do not stand to gain financially from the case.
He said the attorney general's office would not be able to give bonuses to its staff after a major victory and that outside law firms should be barred from receiving a similar reward.
Assistant Attorney General Neil Kelly argued that the attorney general's office, with limited resources, must depend on outside help in such a massive lawsuit. He said if the state was not allowed to strike such deals with private law firms, it would be hamstrung if it wanted to sue an industry with deep pockets.
"We would be curtailed in our ability to bring a matter like that," Kelly said.
Fidelma Fitzpatrick, an attorney from Motley Rice, the law firm that successfully tried the case, said the companies were incorrectly assuming that lawyers paid on a contingency fee basis had more financial interest in the case than those paid through an hourly fee.
It was unclear when the high court would rule.
The companies are expected to appeal the jury's verdict in the case, and Chief Justice Frank Williams appeared reluctant to issue a ruling before the appeal is filed. Tarantino urged the court to act soon to right a constitutional wrong, but Kelly said there were still issues that needed to be resolved.
The jury did not award punitive or compensatory damages, and Superior Court Judge Michael Silverstein must decide how the companies should deal with the public nuisance. The state says tens of thousands of children have been poisoned by lead and that hundreds of thousands of homes contain lead paint.
It's not clear when Silverstein will make his decision, but analysts and advocates have said clean-up costs could reach into the billions of dollars
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