Trial Lawyers Inc. is always searching for its next big payday, and America’s paint manufacturers have recently loomed as the litigation industry’s latest target. The trial bar’s legal assault has combined two of the oldest and most successful strategies in the lawyers’ playbook: going after long-ago manufacturers of lawful products (as in asbestos litigation) and co-opting allied state attorneys general to back the private lawyers’ claims (as in the lawsuits against the tobacco industry).

After years of unsuccessful efforts, the litigation industry’s hopes of extracting money from paint makers began to look promising when the trial bar won a major victory last year. In February 2006, a Rhode Island superior court found three paint manufacturers — Sherwin Williams, Millennium Holdings and NL Industries — liable for the costs of removing lead paint from 240,000 public and private buildings, under a novel “public nuisance” theory. The estimated price tag on the court-ordered cleanup is as much as $3 billion.

But recent court decisions in other states — including New Jersey, Ohio and Missouri — have evinced a more traditional understanding of the issues raised in Rhode Island, and each of these state courts has rejected the litigation industry’s lead paint claims. ... The spate of recent common-sense rulings throws into serious doubt earlier worries that lead paint might become the next asbestos. All eyes will now be on Rhode Island, to see whether its supreme court reverses the multibillion-dollar verdict or upholds the state’s lead paint public nuisance claim contrary to the fundamental tort requirements linking injury to wrongdoing by a specific actor.

If the decision stands, it could pave the way for lawsuits against countless other industries — think fast food, soft drinks and alcohol — that legally and in good faith produced a product that was misused or later discovered to be harmful.

You can read the full report on the Manhattan Institute Web site at: triallawyersinc.com/updates/tli_update_lead_0707.html.