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State ex rel Lynch v. Lead Industries Association6/3/2005
DECISION
This case is before the Court for decision with respect to Defendants' Joint Motion for Summary Judgment on Collective Liability Theories. Defendants' motion was accompanied by an extensive memorandum in support of the joint motion. Thereafter, in due course, plaintiff filed its lengthy opposition to defendants' motion which in turn generated a collective reply from all defendants and separate replies from certain of the defendants. Following the aforementioned complete briefing, a full day was devoted to hearing argument on this significant matter.
In resolving the issue which is implicated in this motion it is necessary for the Court to re-visit (but not to revise) certain of its earlier holdings in this matter. Specifically:
1. In State of Rhode Island v. Lead Industries Association, 2001 WL 3458, 30 at 7 (Rhode Island Superior Court, April 2, 2001) this Court in its decision on defendants' motion to dismiss pursuant to 12(b)(6), ruled that in order to succeed on its public nuisance claim, the State was required to establish (a) the existence of a condition in Rhode Island that causes an unreasonable harm or threat of harm to the public and (b) that the defendants' conduct created, maintained or contributed to the creation of maintenance of the condition alleged to be the public nuisance.
2. Thereafter in State v. Lead Industries Association, 2004 WL 2813 747 at 1 (Rhode Island Superior Court, November 9, 2004), this Court stated that: "the issue . was not as to if such pigment in any particular building or group of buildings (however numerous) constituted a public nuisance, but rather whether the cumulative effect of all such pigment in such properties constituted a single public nuisance."
Thus, the Court has ruled that property specific information is not relative in the context of this case as to whether there exists a "public nuisance." Here the defendants seek (to some extent) to establish that the State's admitted inability to identify a particular paint containing a lead pigment manufactured by any particular defendant at any particular location within the State is at odds with our Supreme Court's opinion ". that the establishment of liability requires the identification of the specific defendant responsible for the injury." Gorman v. Abbott Laboratories, et al. 599 A 2d, 1364 (R.I. 1991). The Gorman Court, in a published order dealing with a DES case refused to adopt a market share liability doctrine which had been accepted in California in a product liability case involving a particular type of drug. In that case, Sindell v. Abbott Laboratories, Inc., 607 P.2d 924 (1980) the plaintiff could not establish which of a number of drug manufacturers had provided the drug taken by her mother which allegedly caused plaintiff's injury. While defendants place great stock in Gorman, as well as in Clift v. Vose Hardware, Inc., 848 A2d, 1130 (R.I. 2004), another product liability case where a manufacturer and, indeed, the seller of bungee cords involved in the accident, could not be identified, and no defect was shown with respect to the cord in which the grant of summary judgment was upheld. The State, (plaintiff here), has no quarrel with the law as articulated in Gorman, Clift and other cases of that ilk other than to say that they are inapplicable to the issues at bar.
First, and of some significance the present case is not a products liability case. As noted above this Court in April of 2001 held that plaintiff had stated an appropriate cause of action for public nuisance. No amount of argument by defendants will result in a reclassification of the nature of this case. In April of 2001 this Court quoted from the Restatement
Page 1 2 3 Rhode Island Personal Injury Attorneys
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