Supreme Court

No. 2010-278-Appeal.

No. 2010-296-Appeal.

(PC 99-5226)

State of Rhode Island :

v. :

Lead Industries Association, Inc. et al. :

NOTICE: This opinion is subject to formal revision before 

publication in the Rhode Island Reporter. Readers are requested to 

notify the Opinion Analyst, Supreme Court of Rhode Island, 250 

Benefit Street, Providence, Rhode Island 02903, at Telephone 222-

3258 of any typographical or other formal errors in order that 

corrections may be made before the opinion is published.
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Supreme Court

No. 2010-278-Appeal.

No. 2010-296-Appeal.

(PC 99-5226)

State of Rhode Island :

v. :

Lead Industries Association, Inc. et al. :

Present: Suttell, C.J., Goldberg, Flaherty, and Indeglia, JJ. 

O P I N I O N

Chief Justice Suttell, for the Court. On July 1 2008, this Court issued an opinion in a 

civil action brought by the State of Rhode Island (plaintiff or state) against various former lead 

pigment manufacturers1 and the Lead Industries Association, Inc., thus concluding what is 

widely considered to be the longest civil jury trial in this state’s history. See State v. Lead 

Industries Association, Inc., 951 A.2d 428, 434, 435 (R.I. 2008). Our decision may have 

resolved the underlying legal issues, but it did little to end the contention between the parties. In 

this opinion, we consider appeals from two Superior Court rulings concerning the apportionment 

of co-examiners’ fees in particular and the payment of costs in general. 

We first consider the state’s appeal from an order of the Superior Court granting the 

motion of Sherwin-Williams Co., NL Industries, Inc., and Millennium Holdings, LLC 

(collectively defendants), for the reimbursement of all previously paid fees, costs, and expenses 

 1 The manufacturer-defendants were Sherwin-Williams Co., NL Industries, Inc., Millennium 

Holdings, LLC, Atlantic Richfield, Co., American Cyanamid Co. and Cytec Industries, Inc., 

ConAgra Grocery Products Co., and other “various defendants [that were] added or removed” 

throughout the history of the underlying case. State v. Lead Industries Association, Inc., No. PC 

99–5226, 2007 WL 711824, 2007 R.I.Super. LEXIS 32 (Feb. 26, 2007); see also State v. Lead 

Industries Association, Inc., 951 A.2d 428, 434 (R.I. 2008). 
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related to the engagement of the co-examiners. The state argues, inter alia, that as a sovereign 

entity, it is not responsible for such expenses under the doctrine of sovereign immunity. The 

defendants contend that the state is liable for all expenses associated with the co-examiners 

because, as a plaintiff in a civil case, the state voluntarily invoked the jurisdiction of the court, 

thereby implicitly waiving any claim of sovereign immunity. 

We then turn to defendants’ appeal from an order denying the motion of SherwinWilliams Co., NL Industries, Inc., Millennium Holdings, LLC, ConAgra Grocery Products Co., 

American Cyanamid Co. and Cytec Industries, Inc., and Atlantic Richfield Co.2 (collectively 

defendants)

3 for an award of allowable costs under Rule 54(d) of the Superior Court Rules of 

Civil Procedure and G.L. 1956 § 9-22-5. The defendants assert that the trial justice “bypassed 

governing legal principles,” and, “[i]n effect, * * * treated the [s]tate as having a special status 

that allows it to avoid costs.” Further, defendants argue that the trial justice used an 

unprecedented “seven-factor test to support its departure from the strong presumption in favor of 

awarding costs to the prevailing parties,” and also that, in using this unprecedented test, “the trial 

justice manipulated it to reach an unjustifiable result * * *.” The state contends that, “through an 

assessment of costs, [d]efendants seek to curtail the Attorney General’s constitutional and 

common law obligation to protect the health and safety of citizens by initiating future ‘public 

interest’ lawsuits,” which, the state asserts, would have serious and far-reaching consequences. 

As such, the state argues that each party should be required to bear its own litigation expenses. 

For the reasons set forth in this opinion, we affirm the orders of the Superior Court. 

 2 Although Atlantic Richfield Co. is included as a defendant in the order denying the motion for 

costs, it did not join in the appeal to this Court. 

3 For the sake of simplicity, we refer to all the manufacturers involved in these two appeals as 

“defendants,” recognizing that not all the manufacturers who appeal from the order concerning 

costs are also parties to the appeal concerning co-examiners’ expenses. 
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I

Facts and Procedural History

The facts and procedural history of this case can be found in detail in Lead Industries

Association, Inc. In 1999, the Attorney General, on behalf of the state, filed the underlying 

lawsuit against various former lead pigment manufacturers and Lead Industries Association, Inc., 

“a national trade association of lead producers formed in 1928.” Lead Industries Association, 

Inc., 951 A.2d at 434.

The trial concluded in a mistrial, but a second trial “resulted in a verdict that imposed 

liability on lead pigment manufacturers for creating a public nuisance.” Lead Industries

Association, Inc., 951 A.2d at 434. Following the entry of judgment, the state requested that the 

abatement process begin immediately and that the trial justice appoint examiners “to aid in the 

implementation of a complex remedial scheme.” Despite the fact that defendants had filed an 

appeal on a number of issues, the state insisted on its request for immediate action. In response 

to the state’s request, defendants moved for a stay of abatement proceedings, which included the 

appointment of any examiners, while their appeal was pending before this Court. 

During a subsequent hearing on defendants’ motion to stay, defendants stated that there 

was “no question that this case and the issues involved [were] issues of first impression, 

unsettled questions that clearly deserve[d] to be finally treated in the appellate process.”4

 The 

defendants also argued that, because “the remedy [wa]s only premised on whether the liability 

[wa]s correct,” the abatement proceedings should not move forward until the issues on appeal 

were resolved by this Court. The state countered, however, that:

 4 We note that the only official transcript submitted to this Court was of the August 15, 2008 

hearing; however, copies of the additional relevant transcripts were attached to the parties’ 

appendices. 
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“[T]here is a continuing threat of harm that exists; exists to 

children who live in homes that have lead hazards and potential 

lead hazards. It exists for their families, the property owners, and 

* * * the citizens of the [S]tate of Rhode Island, the taxpayers of 

the [S]tate of Rhode Island, the burden to government. That all 

still exists. And it exists because of the continuing nuisance that is 

in play. 

“* * *

“We believe not wasting time is getting -- denying the stay and 

getting to the appointment of the special master, dealing with his 

powers and duties, talking about what’s going to be in a remedial 

order, putting infrastructure in place, or thinking about it at least, 

so that when a year from now comes and a decision is rendered by 

the Supreme Court there hasn’t been that -- that delay or that that 

would put it out another year for us to have to get to the same place 

all over again. And it really isn’t that much of an inconvenience to 

the parties. 

“* * *

“To preserve the status quo is to preserve harm to children, 

basically.” 

The trial justice asked counsel for the state, “[H]ow would the [c]ourt compensate this special 

master * * * in the event that the Supreme Court ruled against the [s]tate’s position?” The state’s 

counsel replied that, “at this point in time, that should be a matter that the defendants have to 

pay.” Another attorney for the state then added that:

“In the first instance, certainly that special master’s fees 

should be paid by the defendants. In the event that, we think it’s 

highly unlikely, that the Supreme Court would disagree with what 

Your Honor has ruled over the last eight years, that seems to be 

something that the defendants could at that point seek potentially 

as a cost associated with their appeal * * * and could seek 

reimbursement in that forum.” 

The trial justice denied the stay and, on June 18, 2007, entered an order in which he 

declared defendants to be initially jointly responsible for the cost of any appointed examiners but 

added that the “[f]inal determination of the responsibility for such costs shall be determined by 

the [c]ourt.” Numerous appeals were brought before this Court in 2008. Lead Industries

Association, Inc., 951 A.2d at 434. At that time, we held that the trial justice erred when he 
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failed to grant defendants’ motion to dismiss, and we reversed the judgment of abatement. Id. at 

458, 480. 

In the aftermath of our opinion, several hearings were held before the trial justice on 

issues relating to the payment of various expenses. On August 15, 2008, the trial justice heard

defendants’ motion for co-examiners’ expenses, as well as defendants’ motion for an award of 

allowable costs. At that hearing, defendants argued that as the prevailing parties, they were 

entitled to recover their costs from the state. With respect to the payment of co-examiners’ fees, 

they contended that they had been opposed to the engagement of examiners and that “it would be 

grossly unfair to require the defendants who argued vociferously against the incurring of these 

costs to now * * * have to bear those costs * * *.” The state argued, on the other hand, that the 

doctrine of sovereign immunity barred the court from requiring the state to pay either costs or coexaminers’ fees and also that the state had not waived immunity by filing the lawsuit.

In a written decision issued on January 22, 2009, the trial justice considered the coexaminers’ fees issue under Rule 53(a) of the Superior Court Rules of Civil Procedure, which 

provides, in pertinent part, that “[t]he compensation to be allowed to a master shall be fixed by 

the court, and shall be charged upon such of the parties * * * as the court may direct.” As an 

additional, independent ground for his ruling, the trial justice stated that, “as a matter of judicial 

estoppel, this [c]ourt will not allow the [s]tate to renege on its word and argue that it cannot be 

held responsible for the Co-Examiner expenses for which it had previously lobbied.” The trial 

justice explained that:

“[D]uring the May 1, 2007 hearing before this [c]ourt, the [s]tate 

was asked directly who would be responsible for the Co-Examiner 

expenses should the Supreme Court reverse the decision and 

vacate the judgment of abatement. * * * In response, the [s]tate 

presented to this [c]ourt the possibility of reimbursement for those 

cost[s]. * * * However, now, when faced with the prospect of 
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responsibility for these costs, the [s]tate has changed its position

and is arguing that the Co-Examiner expenses cannot and should 

not be imposed on the [s]tate. If the [s]tate believed it could not be 

held responsible for these expenses, it should have expressed this 

opinion at the May 1, 2007 hearing instead of leading the [c]ourt to 

believe that, in the event of a reversal, the [d]efendants could seek 

reimbursement from the [s]tate. The [s]tate’s current position 

concerning its potential responsibility for payment of the CoExaminer expenses is wholly inconsistent with its previous 

position, as articulated to the [c]ourt at the May 1, 2007 hearing.” 

The trial justice determined that, “as a matter of law and fundamental fairness, sovereign 

immunity will not insulate the [s]tate from responsibility for the [c]o-[e]xaminer expenses.” In 

support of his determination, the trial justice observed that “[t]he [s]tate made a calculated 

decision to pursue a claim against the [d]efendants and voluntarily participate in the judicial 

system, and thus may not invoke sovereign immunity to shield it from the imposition of costs.” 

In conclusion, the trial justice stated:

“After due consideration of the arguments advanced by 

counsel at oral argument and in their memoranda, the [c]ourt has 

determined that the [s]tate shall be responsible for reimbursement 

of all costs and expenses associated with the Co-Examiners. * * * 

Pursuant to [paragraph] 13(a) of the June 18, 2007 Order, the 

[c]ourt reserved the right to modify it[s] original allocation of CoExaminer expenses. Here, where the Rhode Island Supreme Court 

has overturned the jury verdict against the [d]efendants and 

vacated the judgment of abatement, it would be inappropriate to 

continue holding the [d]efendants liable for any portion of the CoExaminer expenses.” 

 

An order entered on June 28, 2010, requiring the state to reimburse defendants $242,121.21. The 

state timely appealed. Also on June 28, 2010, an order entered denying defendants’ motion for 

costs. Final judgment entered on the same date from which defendants timely appealed. We 

consolidate both appeals for purposes of this opinion. 
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II

Standard of Review

We review a trial justice’s determination relative to the allocation of costs pursuant to 

§ 9-22-5 and Rule 54(d), as well as a ruling on the apportionment of co-examiners’ expenses 

under Rule 53(a) of the Superior Court Rules of Civil Procedure, employing an abuse-ofdiscretion standard. Under § 9-22-5, the prevailing party is entitled to recover costs in a civil 

action, “except where otherwise specially provided, or as justice may require, in the discretion of 

the court.” Rule 54(d) also specifies that “[c]osts * * * shall be allowed as of course to the 

prevailing party as provided by statute and by these rules unless the court otherwise specifically 

directs.” As expressly stated, both § 9-22-5 and Rule 54(d) endow the trial justice with 

discretion in conducting a cost-distribution analysis. “[D]iscretion is not exercised by merely 

granting or denying a party’s request.” DiRaimo v. City of Providence, 714 A.2d 554, 557 (R.I. 

1998) (quoting Hartman v. Carter, 121 R.I. 1, 4-5, 393 A.2d 1102, 1105 (1978)). The term 

“discretion,” rather, denotes action taken “in the light of reason as applied to all the facts and 

with a view to the rights of all the parties to the action while having regard for what is right and 

equitable under the circumstances and the law.” Id. (quoting Hartman, 121 R.I. at 5, 393 A.2d at 

1105). Likewise, Rule 53(a) provides that “[t]he compensation to be allowed to a master shall be 

fixed by the court, and shall be charged upon such of the parties * * * as the court may direct.”
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III

Discussion

A

Co-Examiners’ Fees

On appeal, the state argues that the trial justice erred in reaching his conclusion that the 

state waived its sovereign immunity because it filed the underlying lawsuit. Additionally, the 

state contends that the trial justice erred when he ordered it to reimburse defendants for the costs 

associated with the co-examiners. 

According to defendants, the state’s argument is flawed because, “irrespective of liability 

costs at the conclusion of a case, [Rule] 53(a) authorizes the Superior Court to allocate the costs 

of a special master among the parties at any point during the proceeding.” Moreover, defendants 

contend that “sovereign immunity has no role to play when the state voluntarily invokes the 

jurisdiction of the court, utilizes its rules and procedures to advance its tactical interest, and is 

then required by these same rules to pay fees when the issue goes against it.” 

The state counters that the trial justice’s assertion of judicial estoppel was inappropriate 

because he “placed undue emphasis on the [s]tate’s statement to the [c]ourt that [d]efendants 

could seek reimbursement upon reversal.” The state argues that its suggestion to the trial justice 

that, if he were reversed, defendants “‘could at that point seek potentially as a cost associated 

with their appeal * * * and could seek reimbursement in that forum’ * * * is hardly an 

unequivocal waiver or statement that [d]efendants would be entitled to co-examiner costs if they 

succeeded on appeal.” This, the state further contends, “was merely a factual statement that 

defendants could file a [m]otion at a time when there was a case or controversy to address, not 

when there was a hypothetical situation that the trial court itself found unlikely.” 
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The invocation of judicial estoppel is “driven by the important motive of promoting 

truthfulness and fair dealing in court proceedings.” D & H Therapy Associates v. Murray, 821 

A.2d 691, 693 (R.I. 2003). “Unlike equitable estoppel, which focuses on the relationship 

between the parties, judicial estoppel focuses on the relationship between the litigant and the 

judicial system as a whole.” Id. (citing 28 Am. Jur. 2d Estoppel and Waiver § 34 (2000)). “The 

United States Supreme Court has noted that ‘[b]ecause the rule is intended to prevent improper

use of judicial machinery, * * * judicial estoppel is an equitable doctrine invoked by a court at its 

discretion.’” Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)). “One of the 

primary factors courts typically look to in determining whether to invoke the doctrine in a 

particular case is whether the ‘party seeking to assert an inconsistent position would derive an 

unfair advantage * * * if not estopped.’” Id. at 694 (quoting New Hampshire, 532 U.S. at 751). 

“Courts often inquire whether the party who has taken an inconsistent position had ‘succeeded in 

persuading a court to accept that party’s earlier position, so that judicial acceptance of an 

inconsistent position in a later proceeding would create the perception that either the first or the 

second court was misled.’” Id. (quoting New Hampshire, 532 U.S. at 750). Here, a review of the 

record clearly shows that the trial justice predicated his decision—granting the state’s request to 

appoint examiners and ordering defendants jointly responsible for all related expenses—upon the 

state’s representation that defendants could seek reimbursement if the judgment were to be

reversed on appeal.

During the hearing on defendants’ motion to stay the abatement proceedings, the trial 

justice specifically questioned the state about which party would be responsible for the expense 

of the co-examiners. The state responded that “[i]n the first instance,” defendants should be 

responsible for the expenses, but then added that, if the judgment were to be reversed on appeal, 
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it “seem[ed] to be something that the defendants could at that point seek potentially as a cost 

associated with their appeal * * * and could seek reimbursement in that forum.” As a result, the 

trial justice denied the stay and reserved final judgment regarding the responsibility for the costs 

related to the examiners.

Moreover, in the trial justice’s decision regarding the allocation of co-examiners’

expenses, he explicitly stated that had the state believed that sovereign immunity would shield it 

from financial responsibility “it should have expressed this opinion at the May 1, 2007 hearing 

instead of leading the [c]ourt to believe that, in the event of a reversal, the [d]efendants could 

seek reimbursement from the [s]tate.” This statement unmistakably indicates to this Court that,

when the trial justice ordered that defendants assume responsibility for these expenses, he 

substantially relied upon the state’s declaration that defendants would be able to seek 

reimbursement if they succeeded in their appeal. 

Because a trial justice has discretion in applying judicial estoppel when he or she finds 

that a party’s inconsistent positions would create an unfair advantage, our review is deferential 

and considers whether judicial acceptance of that party’s subsequent position would be perceived 

as misleading as to either the first or second court. See Murray, 821 A.2d at 694. We are fully 

confident that the trial justice in this case was justified in his use of judicial estoppel. We deem 

the state’s initial declaration that defendants could seek reimbursement upon appellate success to 

be misleading when compared with the state’s subsequent sovereign-immunity argument, which 

would bar any reimbursement to defendants. Therefore, we perceive no error in the trial justice’s

application of judicial estoppel.

5

 5 Because we hold that the state was judicially estopped from asserting a sovereign-immunity 

defense against the allocation of costs related to the co-examiners, we need not consider whether 
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B

Costs

With respect to the denial of defendants’ motion for costs, defendants argue that the trial 

justice correctly recognized the presumption of awarding costs to the prevailing party, but erred 

by disregarding that presumption and instead applying “a purely discretionary standard.” The 

defendants specifically contend that the trial justice not only used an unprecedented “sevenfactor test to support [his] departure from the strong presumption in favor of awarding costs to 

the prevailing parties,” but also “manipulated it to reach an unjustifiable result [in this case].”6

Specifically, defendants assert five errors committed by the trial justice: (1) “failing to apply the 

proper presumption and burden of proof”; (2) “applying inappropriate cost factors and ignoring 

relevant ones”; (3) “creating a different standard for the [s]tate than other non-prevailing 

parties”; (4) “failing to consider facts of record”; and (5) “speculating with respect to facts not of 

record.” 

The state counters that the trial justice did not err because he looked at the totality of the 

circumstances to support his determination that each party should bear its own costs. The state 

suggests that, although “the narrow issue on appeal may be viewed as which party(s) must bear 

the cost of litigation, the answer to this question in the context of this case has far-reaching 

implications.” Additionally, the state asserts that, “through an assessment of costs, [d]efendants 

 

the trial justice erred in his determination that the state waived its sovereign immunity by 

initiating litigation. 

6 The defendants suggest that the trial justice considered the following seven factors: (1) “The 

financial need of the prevailing party for reimbursement”; (2) “The burden that the imposition of 

costs would have on a non-affluent, non-prevailing party”; (3) “Any bad faith or misconduct by 

the prevailing party”; (4) “Good faith of the plaintiff in bringing the action”; (5) “Whether the 

action provided any direct or indirect benefit to the public or the victorious party”; (6) “The 

complexity of the matter”; and (7) “Whether imposition of costs would unduly inhibit future 

litigation.” We, however, decipher only four factors that the trial justice weighed, which are 

discussed infra. 
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seek to curtail the Attorney General’s constitutional and common law obligation to protect the 

health and safety of citizens by initiating future ‘public interest’ lawsuits.” 

The trial justice acknowledged the presumption in favor of awarding costs to the 

prevailing party under Rule 54(d), noting, however, that such an award is discretionary. The trial 

justice, quoting DLC Management Corp. v. Town of Hyde Park, 45 F. Supp. 2d 314, 315 

(S.D.N.Y. 1999), explained that costs may be denied “upon a showing that such an award would 

be inequitable.” Further, he looked to the following factors: (1) whether the state’s claim was 

frivolous; (2) whether the state proceeded in good faith; (3) whether the award of costs “could 

have a chilling effect on future suits by the public raising public health or environmental 

concerns”; and (4) whether “substantial benefits” were conferred on “the public and the 

prevailing parties.”7 As this Court has stated, a trial justice exercises proper discretion when the 

final determination is “in the light of reason as applied to all the facts and with a view to the 

rights of all the parties to the action while having a regard for what is right and equitable under 

the circumstances and the law.” Hartman, 121 R.I. at 5, 393 A.2d at 1105. 

In his written decision, the trial justice analyzed the totality of the circumstances and 

found the following: (1) that the state’s claim was not frivolous or made in bad faith; (2) that the 

public had a heightened interest because of the physical and environmental problems lead paint 

presented; (3) that assigning all costs to the state could act as a penalty and deter future 

environmental suits; and (4) that both the public and defendants substantially benefited from the 

commencement of the litigation. As a result, the trial justice held that both the state and 

defendants were responsible for bearing their own costs. 

 7 The trial justice also noted “the severe financial position of the [s]tate”; however, he expressly 

clarified that this was not a basis for his decision in this case. 
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After a careful review of the record, we are satisfied that the trial justice did not overlook 

or misconceive the facts of this case, nor did he apply those facts inappropriately to the factors he 

used in reaching his conclusion. Although we need not endorse each specific factor he utilized, 

we conclude that he carefully considered the totality of the circumstances as well as the equities,

given the significant history and multitude of issues involved in this important case. As such, we 

are satisfied that the trial justice’s denial of the defendant’s motion for costs was not clearly 

erroneous. Accordingly, we will not disturb the ruling of the trial justice, who conscientiously 

and meticulously presided over this very lengthy and complex litigation.

IV

Conclusion

For the reasons set forth in this opinion, we affirm the orders of the Superior Court. The 

record of this case shall be remanded to the Superior Court. 

Justice Robinson did not participate. 
RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: State of Rhode Island v. Lead Industries Association, Inc. et al.

 

CASE NO: No. 2010-278-Appeal.

No. 2010-296-Appeal.

(PC 99-5226)

COURT: Supreme Court

DATE OPINION FILED: May 10, 2013

JUSTICES: Suttell, C.J., Goldberg, Flaherty, and Indeglia, JJ.

WRITTEN BY: Chief Justice Paul A. Suttell

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT:

 Associate Justice Michael A. Silverstein

ATTORNEYS ON APPEAL:

 For Plaintiff: Michael W. Field

 Department of Attorney General 

 For Defendants The Sherwin-Williams Co., NL Industries, Inc.,

 and Millennium Holdings, LLC: 

John A. MacFadyen, Esq.

 For Defendants The Sherwin-Williams Co., NL Industries, Inc., 

 Millennium Holdings, LLC., ConAgra Grocery Products Co., 

 American Cyanamid Company and Cytec Industries, Inc.:

Laura B. Ellsworth, Esq., Pro Hac Vice