David Rosner: Judge upholds decision against lead-paint companies based on historian's work

Historians in the News

In a dramatic setback for three corporations convicted of creating a public nuisance by selling lead-based paints generations ago in Rhode Island, Superior Court Judge Michael A. Silverstein yesterday rejected every plea and motion from the companies to retry or throw out the case.

Instead, Silverstein said he would soon appoint a special master to oversee the removal of lead paint from houses in Rhode Island — a job the state has estimated could cost $1.37 billion to $3.74 billion.

The paint companies will appeal Silverstein’s ruling to the state Supreme Court. “We believe there have been a number of basic legal errors throughout these proceedings. These errors were not corrected in today’s ruling,” said spokeswoman Bonnie J. Campbell, adding that she hopes the Supreme Court will review the issues with a fresh set of eyes.

But the ruling, released at noon, was a joyous development for child advocates and lawyers who have supported the lawsuit....

The companies argued repeatedly that the lawyers for the state and for Motley Rice failed to show that their products were sold in Rhode Island. But Silverstein wrote that he had already rejected those arguments during the trial. The state only had to show that each defendant, “engaged in activities which were a substantial factor” in creating the public nuisance, he wrote.

Silverstein also noted that historian David Rosner testified during the trial that all three defendants sold and promoted their lead paints in Rhode Island. What’s more, Rosner’s conclusions were supported by national advertisements and promotional campaigns that were entered as evidence, the judge wrote.

“The defendants had an adequate opportunity through cross-examination to discredit Dr. Rosner’s testimony on substantiality and the sale of goods in Rhode Island, but they failed to convince the jury,” Silverstein wrote...


Evidence that the Defendants Substantially Participated
in the Promotion and Sale of Lead Pigment in Rhode Island

On the second day of Dr. Rosner’s testimony, the State elicited the following testimony as to each Defendant:
“Q. And in your review of the hundreds of thousands of documents that you talked about, were there documents from each of these company's corporate files as well?

A. Yes, there were.

Q. And within the corporate documents of each of the defendants, did you find business records that details activities of any of the defendants within the state of Rhode Island?

A. Yes, I did.

Q. Do you have an opinion after that review, Professor Rosner, to a reasonable degree of professional certainty as to whether any of the defendants sold, distributed, advertised, and/or promoted lead products within the state of Rhode Island?

A. Yes, I do.

Q. And what is that opinion as to NL Industries – National Lead?

A. They sold and promoted in the state of Rhode Island.
. . . .

Q. And as to Millennium Holding's predecessor, Glidden?

MR. NILAN:  Objection.  Lack of foundation.

Q. As to the Glidden Company?

MR. NILAN:  Same objection.

A Yes.

MR. NILAN:  Lack of foundation.

THE COURT:  Overruled.

A. Yes.  They promoted and sold in the state of Rhode Island.

Q. And as to Sherwin-Williams?

A. They also sold and promoted in the state of Rhode Island.

Q. And was this at a time when each of them had actual knowledge about childhood lead poisoning?

A. Yes, it is.”  (Off. Dr. Tr. 76:21–78:5, Jan. 13, 2006 AM Session.)

Dr. Rosner’s opinion, if properly admitted, clearly provides a basis for which the jury could find that the three Defendants sold and promoted lead products within Rhode Island. 
Certain Defendants contend that the reference to “lead products”—as opposed to lead pigment—which was made by State’s counsel and adopted by the witness, is too vague to support the conclusion that the various Defendants sold and promoted lead pigment in Rhode Island.  (Off. Dr. Tr. 76: 8, 13, 24, 78:2, Jan. 13, 2006 Morning Session.) (reprinted above.)  The State responds that, taken in its proper context, the testimony means lead pigment.
The reference to both “lead products” and “lead pigment” in Dr. Rosner’s testimony is an ambiguity.  However, in his later testimony, counsel for Millennium elicited the following testimony:
“Q Now, let me talk about what you've said in regard to Rhode Island.  You said in your direct testimony, again with the reasonable degree of professional -- a reasonable degree of professional certainty that each of the defendants, and you said specifically Glidden, based on your review of the hundreds of thousands of documents, sold and promotedlead pigment in the state of Rhode Island.  That was your testimony; was it not?

A Yes.”  (Off. Dr. Tr. 45:12–20, Jan. 19, 2006 AM Session.) (Emphasis added.)

Perhaps counsel’s reference to “lead products” as opposed to “lead pigment” was inadvertent, or perhaps there was significance to the distinction.  However, as finder of fact, the jury was entitled to conclude, based upon the later testimony on cross-examination, that the meaning of Dr. Rosner’s testimony as a whole was that the Defendants sold and promoted lead pigment in Rhode Island. Therefore, even if the context of Dr. Rosner’s statement on direct did not clear up the ambiguity, his cross-examination was adequate to do so. 
Of course, it is possible and perhaps probable that many entities also sold and promoted lead pigment in Rhode Island in addition to the Defendants.  Therefore, in order to impose liability on these Defendants, their sale and promotion activity must be “substantial.”  Restatement (Second) of Torts § 834, com. d (stating that when a person “is only one of several persons participating in carrying on an activity, his participation must be substantial before he can be held liable”).  
The Defendants contend that Dr. Rosner’s opinion, quoted above, provides no basis for the jury to find that each Defendant’s sale and promotion in Rhode Island was “substantial.”  However, the State introduced other evidence through Dr. Rosner, which not only attempted to provide an evidentiary foundation for the testimony, but which, if believed, would have provided a basis for the jury to find that the Defendant’s activities were substantial.  As noted above, where there is reasonable doubt, substantiality is a question for the trier of fact, which in this case was the jury.  Id.
Dr. Rosner testified that each Defendant advertised their lead pigment in the various national media during the 1920’s and 1930’s, and presented examples of such advertisements from each company.  (Off. Dr. Tr. 20:16–25:17, Jan. 13, 2006.) (describing Plaintiff’s Exhibits 178–181.)  Seealso Pl’s Ex. 198 (containing a 1950 NL advertisement).
He then testified about various joint promotion campaigns among lead pigment producers.  For example, NL and SW “participated and funded” the “Forest Products Better Paint Campaign” in 1934 to 1941 which was designed to promote lead pigment.  (Off. Dr. Tr. 43:16–44:11, 45:6–46:2, Jan. 13, 2006.)  Dr. Rosner testified that the goals of the campaign were to increase the sale of lead paint in lumberyards, encourage consumers to use more lead paint in new construction, and to encourage manufacturers of non-leaded paint to begin using lead in their products.  Id. 46:24–47:13.  To accomplish that goal, representatives traveled
“to different states’ conventions and fairs with trailers that they would use as kind of evidence of the values of lead --leaded products.  They have, of course, an advertising campaign.  They also tried to get lumber associations to put labels on their products that it recommended white lead products.”  Id. at 48:1–8.

Moreover, this advertising campaign included parts of New England and was considered successful.  Id. at 51:8–14.
NL similarly participated in the “White Lead Promotion Campaign” from 1939 to 1942.  Id. at 55:5–11.  This campaign was targeted to consumers through national magazine advertisements, and also involved salesmen traveling with model homes on trailers.  Id. at 60:14–62:21.  Dr. Rosner specifically testified as to NL that this campaign took place in Rhode Island, and had quite a broad reach nationally and in New England.  Id. at 65:23–25, 69:17–70:6, 71:7–72:22. 
In 1950, a second White Lead Promotion Campaign was undertaken in which SW and Glidden (Millennium’s predecessor) joined NL as participants, although they believed that campaign to be unsuccessful.  Id. at 96:7–18, 100:14–18.  As to Millennium, the State elicited further testimony with respect to their sale and promotion activity in Rhode Island in 1952. 
“Q. Professor Rosner, did Glidden promote lead products in Rhode Island?

A. Yes, it did.

Q. And did Glidden sell lead products in Rhode Island?

A. Yes, it did.

Q. Did Glidden have branch stores here in Rhode Island?

A. Yes, it did.

Q. And did Glidden have independent dealers selling Glidden paint here in Rhode Island?

A. Yes, it did.

Q. And in your investigation, did you discover agreements between various distributors and Glidden that covered the sale of lead pigments?

A. Yes, I did.

Q. And did these agreements include distributors that covered the State of Rhode Island?

A. Yes.

. . . .

Q. Professor Rosner, can you identify that document for the record, please?

A. Yes, this is a memo from the Glidden Company in Cleveland to sales agency -- it's a sales agency agreement, and it's dated 15th day of March, 1952.

MR. McCONNELL:  Your Honor, at this time plaintiff moves Exhibit 206 against Millennium Holdings Industries only.
. . . .

MR. McCONNELL:  Your Honor, I -- 206 is a full exhibit against Millennium Holdings only?

. . . .

Q. It's a sales agency agreement by the Glidden Company?

A. Yes.
. . . .

Q. Did Glidden Company have a sales agreement to sell lead pigment to the Oliver Johnson and Company here in Providence, Rhode Island?

A. Yes, it did.
. . . .

Q. And did they have a sales agreement to sell lead pigment to Voit Paint Products, Inc. in Central Falls, Rhode Island?

A. Yes.

Q. And that Oliver Johnson and Company, is that the company that Mr. Pohl asked you about on cross-examination?

A. That's right.

Q. And did this agreement cover the sale of Euston White Lead?

A. Yes.

Q. And Euston was owned by Glidden?

A. Yes.

Q. Did Glidden's advertising campaign include Rhode Island?

A. Yes.

Q. Glidden advertised lead products here in Rhode Island?

A. Yes.
. . . .

Q. Did Glidden Company have a sales agreement to sell lead pigment to the Oliver Johnson and Company here in Providence, Rhode Island?

A. Yes, it did.

Q. And did they have a sales agreement to sell lead pigment to Voit Paint Products, Inc. in Central Falls, Rhode Island?

A. Yes.”  (U. Tr. 14:23–17:23.) Seealso Pl’s Ex. 206.

The following evidence further supports the jury’s finding that each Defendant’s participation in the sale and promotion of lead pigment in Rhode Island was substantial:
“Q. Professor Rosner, in connection with your historic review of documents we -- have you been able to determine the market share of these four defendants during the 1930's and 1940's for dry white lead?

A. Yes, I have.

Q. What is that information?

A. The market share was approximately 50 to 75 percent of the market for dry white lead.

Q. And in connection with your investigation, were you able to determine what the market share for these four defendants was during the 1930's and 1940's with regard to lead-in-oil?

A. Yes, I can.

Q. And what is that information?

A. It's between 70 and 80 percent.”  (Off. Dr. Tr. 24:22–25:11, Jan. 12, 2006.)

While perhaps, on the basis of this “market share” evidence alone, the most that a jury could infer was that the four Defendants collectively held 50 to 75 percent of the national market for dry white lead, and 70 to 80 percent of the market for lead-in oil.  This of course does not reveal any particular Defendant’s individual market share, and the Defendants strenuously object on this basis.  However, the testimony continued:
“Q. Now, in the 1930's and 1940's, Professor Rosner, how many manufacturers of paint were there in this country?

A. I have seen reference to at least a thousand; between a thousand and two thousand, I would assume.

Q. Now, compared to paint manufacturers, how many manufacturers of lead pigment for use in paint were there in this country during the 30's and 40's?

A. Very, very few.  Just a handful.

Q. And were each of the defendants that are in this case a manufacturer of lead pigment?

A. Yes.

Q. And did the manufacturers of the lead pigment supply the lead for the thousands of manufacturers of paint that you just talked about?

A. Yes, they did.

Q. And did each of these defendants own a lead mine?

A. Yes.

Q. And were each of these defendants -- strike that, I have already asked you that.  Was Sherwin-Williams, National Lead, and Glidden manufacturers of lead paint as well?

A. Yes, they were.

Q. And was ARCO's predecessor also a manufacturer of lead paint?

A. Um, no.  ARCO produced a white lead in oil which was sometimes used as -- as paint.

Q. But all four of them are lead pigment manufacturers?

A. Yes, that's correct.

Q. And all four own mines?

A. Yes, that's correct.”  (Off. Dr. Tr. 25:12–26:16, Jan. 12, 2006.)

This testimony indicates that while there were many manufacturers of paint in the 1930’s and 1940’s, there were “only a handful” of lead pigment manufacturers.  Id. at 25:12–19.  Further, each of the defendants separately owned a lead mine, and each was one of a handful of lead pigment manufacturers which supplied lead pigment to the many manufacturers of paint, and collectively held over 50 percent of the market for dry white lead and lead-in-oil. 
The jury could properly have concluded from this testimony that the Defendants’ substantially participated in the sale and promotion of lead pigment nationally.  Then, in combination with Dr. Rosner’s testimony on each Defendant’s individual promotion efforts in Rhode Island, and his opinion that each Defendant sold and promoted lead pigment in Rhode Island, the jury could have inferred (though it was not required to so infer) that each Defendant’s participation in Rhode Island was similarly substantial.  It is also undisputed that lead pigment became illegal on or near 1978, so that any lead-containing paint that still exists on buildings in Rhode Island today has been there for almost thirty years.  Therefore, although each Defendant stopped manufacturing some time ago, the jury could still have concluded that the Defendants’ lead pigment is still on Rhode Island buildings in substantial amounts.  On the basis of the foregoing, the Court concludes that the evidence was sufficient to make a prima facie case that the Defendants substantially participated in activities which proximately caused the public nuisance.  Therefore, it is sufficient under Rule 50.
As noted above, the Court is required to assess credibility under Rule 59.  Therefore, the Court will look to Dr. Rosner’s cross-examination, where the Defendants attempted to test the basis of Dr. Rosner’s opinion.  For example, NL elicited testimony that the promotional campaigns were actually performed as part of the Lead Industries Association’s (LIA) activities.  (Off. Dr. Tr. 58:11–24, Jan. 18, 2006.)  Although the Court ruled that acts of the LIA are not attributable to the Defendants, this is still relevant circumstantial evidence to show the extent that the lead-pigment products of LIA members were marketed nationally and in Rhode Island.  See Off. Dr. Tr. 2:14–6:7, Dec. 12, 2006 (ruling that agency has not been shown).  Such evidence permitted the jury to infer that the LIA was marketing the products of its members—the Defendants—who admittedly were in the business of manufacturing and selling lead-pigment.  See U. Tr. 43–46, Nov. 16, 2005 PM Session (containing stipulations to the manufacturing activities of each Defendant, and their predecessors, during various time periods). So while the LIA’s activities are not attributable to any Defendant, the evidence is still competent to demonstrate that the Defendants products reached Rhode Island.
SW also attempted to undercut the basis for Dr. Rosner’s “sold and promoted” opinion.  When asked about the basis for his opinion as to SW, the following exchange took place:
“Q. In fact, you do not have any evidence or information that any lead ingredient that was made, sold or promoted by Sherwin Williams is present today in a building in Rhode Island in an area accessible to children, you don't have any evidence or information of that point, do you?

A. Well, you -- again, I don't want to sound redundant, but you advertised it here, had stores here, you sold it here, and I would assume that people bought it here and, hence, I would assume that they used it.

Q. You're saying that's your assumption as you sit here today.  Is that what you just said?

A. Well, it's -- it's more than an assumption.  I know you had stores here.  You had one over on Traverse Street, you had a warehouse, you had salesmen here.  You had outlets for ACME paint and other paints here.  You had a representative who lived in Pawtucket who was here selling something, and I would assume it's various products of Sherwin Williams, or I know was various  products of Sherwin Williams.  And I must assume that you were selling what you usually advertised in throughout the nation, you were selling the same products here.  So, therefore, I would assume that they're here.”  (U. Tr. 59:19–60:18, Jan. 19, 2006 PM Session.)

Millennium and ARCO engaged in similar cross-examinations.  See Off. Dr. Tr. 34:25–45:25, Jan. 17, 2006 AM Session (ARCO cross-examination); Off. Dr. Tr. 40:21–47:4, Jan. 19, 2006 AM Session (Millennium cross-examination).  These cross-examinations were sufficient to illustrate what was not the basis for the opinion—specific sales of goods in specific Rhode Island stores.  However, the Court finds that Dr. Rosner’s testimony; the evidence of national advertisements of lead-containing paint for each Defendant; SW and NL’s participation in the Forest Products campaign which included Rhode Island; NL’s participation in the first White Lead Promotion Campaign, the three Defendants’ participation in the unsuccessful second White Lead Promotion Campaign; Millennium’s contracts referring to Rhode Island and its participation in the second White Lead Promotion campaign; the national composition of the lead-pigment market; and the Defendants’ participation in that national market, formed a sufficient basis to find substantial contribution.
This Court has had opportunity in another context to remark that the evidence of Rhode Island conduct was “thin at best” for purposes of imposing punitive damages.  (Off. Dr. Tr. 10:18–20, Feb. 28, 2006 PM Session.)  Surely, the jury was free to reach an opposite conclusion, especially if it felt that Dr. Rosner’s testimony was not credible.  However, the evidence on the nexus issue was sufficient to make a prima facie case, and was not contradicted.  The Defendants had an adequate opportunity through cross-examination to attempt to discredit Dr. Rosner’s testimony on substantiality and the sale of goods in Rhode Island, but they failed to convince the jury.  Perhaps if the Defendants had introduced conflicting evidence, which would tend to discredit the proposition that the Defendants substantially promoted and sold lead pigment in Rhode Island, then another result would have obtained.  However, even if the Court might have reached a different conclusion, it will not substitute such conclusion for the jury’s verdict.  SeeTurgeon v. Davis, 120 R.I. at 590, 388 A.2d at 1175; seealso Restatement (Second) of Torts § 834 com. d (noting that where reasonable doubt exists, substantiality is a question for the trier of fact).  Therefore, the Court finds that a sufficient mosaic of circumstantial evidence exists on this record to support a Rhode Island nexus, and will not order a new trial on this basis.

There were apparently thirteen companies participating in that campaign.  (U. Tr. 9:2–4, Jan. 17, 2006.)

The Defendants’ objection to this “market share” testimony is addressed below in Part III.F.6.c of this decision.

In addition, Millennium’s re-cross-examination was designed to show that the sales agency agreement, Plaintiff’s Exhibit 206, only provided the Massachusetts company with a right to sell goods in Rhode Island—but did not directly prove that such sales took place.  (U. Tr. 65:3–68:8, Jan. 20, 2006.)  However, Dr. Rosner was entitled to infer, as was the jury, that a sales agreement to sell goods in Rhode Island actually resulted in sales in Rhode Island.

Millennium has objected to the evidentiary foundation for Dr. Rosner’s testimony and argues that its admission requires a new trial.  For the same reasons, the Court finds that his opinions were admissible and that no new trial is warranted.

However, the Court also noted that for purposes of imposing liability, as opposed to punishment, it is proper to consider out-of-state conduct if that conduct causes harm within the state.  SeeYoung v. Masci, 289 U.S. 253, 258 (U.S. 1933) (Brandeis, J.) (“A person who sets in motion in one State the means by which injury is inflicted in another may, consistently with the due process clause, be made liable for that injury whether the means employed be a responsible agent or an irresponsible instrument.”)

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