Cornyn questions McConnell about Texas schools lead paint litigation

Marilyn Tennissen May 27, 2010, 5:14am


U.S. Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, asked John McConnell Jr. if it was appropriate for a lawyer to solicit a school board as a client in a lead-based paint remediation lawsuit even if the district is not sure its schools contain lead paint.

McConnell, a nominee for a federal judgeship in Rhode Island, gave a one word answer to Cornyn's question: No.

But that is exactly what McConnell's law firm, Motley Rice, did in Texas a decade ago.

Following a May 13 hearing before the committee, Cornyn had 18 more questions for McConnell, which he submitted in writing to the nominee.

Among other things, Cornyn wanted to know about an August 2000 letter to a regional education service center in Fort Worth which asked the various districts to participate in litigation against the companies that at one time made the lead-based paint that was used in schools more than 30 years ago.

What was then the Ness Motley Loadholt Richardson & Poole firm in South Carolina was working with Beaumont attorney Tanner Hunt of the Wells, Peyton, Greenberg & Hunt firm as well as another Beaumont firm Weller, Green, Toups & Terrell.

The firms were sending letters to Texas schools because the state has no statute of limitations for governmental entities to file suit.

"Our firm and the other firms are undertaking to offer the opportunity to participate in the suit to as many school districts in Texas as possible, to avoid the unnecessary expense of multiple suits," Hunt wrote to the Region 11 ESC on Aug. 2, 2000.

The firm called it a "win-win" situation, because the district has "nothing to lose," since the lawyers were working on a contingency fee basis. If the firm recovered nothing for the district, the district would owe no fees or costs.

But if damages were recovered, the lawyers' cut was to be 40 percent, which Hunt said was "standard in Southeast Texas" for complicated contingency fee cases. Asbestos cases had also involved 40 percent fees, Hunt reminded the districts.

Even if the district administrators weren't sure there was any lead-based paint remaining in district buildings, "it doesn't matter at this point; all schools had lead-based paint at one time or another," Hunt wrote.

The lawyers' investigators would use district records and inspections to determine just how much lead paint had been used over time. The costs of finding and removing the paint would form the basis of the claim.

"And since there is no statute of limitation we may go back as far as anecdotal and other evidence permits in working up each district's claim," the letter stated.

The lead-based paint manufacturers had consciously endangered the public school children of Texas, he wrote, so the firms would be seeking punitive damages.

In addition, the school districts didn't even have to use any award they received for lead paint remediation.

"In our opinion, any funds recovered by the district may be placed in the general maintenance and operations fund and used for any appropriate purpose" that the board and administration determined.

The letter that Cornyn attached to his questionnaire for McConnell was addressed to Dr. O.C. Taylor, who at the time was chairman of Region 11 ESC. Taylor told the Southeast Texas Record he vaguely recalled receiving the letter, and remembered only that the board took no action on the matter.

Calls by the Record to Wells, Peyton were not returned.

In his response to Sen. Cornyn, McConnell wrote he wasn't aware of the letter and that his firm had nothing to do with it.

The Judiciary Committee will meet again on May 27, but is not expected to reach a decision about McConnell's nomination until mid June.

Written Questions from Sen. John Cornyn and Written Answers from Nominee John McConnell Jr.

16. Attached as Exhibit A is an August 2, 2000 memorandum from a Texas plaintiffs' law firm to Texas school board members lobbying the school board to join a leadbased paint remediation lawsuit that was headed by Ness Motley, predecessor to Motley Rice LLC and your firm at the time.

a. Do you believe that it is appropriate for a lawyer to solicit a school board as a client in a lead-based paint remediation lawsuit if the district is not aware whether district school buildings have lead-based paint and is not aware of any past remediation costs?

Response: No.

b. Do you believe that it is appropriate for a lawyer, in soliciting a school board as a client in a lead-based paint remediation lawsuit, to assure the district that if it recovers funds for lead-based paint remediation, those funds do not have to be spent on lead-based paint remediation, but may be placed in the general maintenance and operations fund and used for any appropriate purpose?

Response: No.

c. Did you or any attorneys with your firm help prepare the attached memorandum or the resolution attached thereto? If so, please identify who helped in the preparation.

Response: I have never seen the memo that is Attachment A and know nothing about the circumstances of the preparation or distribution of this document. I made diligent inquiry of members of my firm and they advised that they also did not have any involvement with this memo.

d. Have there been similar solicitations sent to other school board officials or other state and local government officials related to cases on which Motley Rice LLC or its predecessor firms worked? If so, to whom?

Response: I made diligent inquiry of members of my firm and there have been no such similar solicitations.

e. Do you agree with the memorandum's assessment that pursuing lead paint litigation on a contingency fee basis is a "win-win situation" for the school board?

Response: No.

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