The “dreck” motion revisited

Many, many years ago a very, very funny motion was filed in a very, very sad case. The case involved a little girl who had suffered brain damage and other injury as a result of lead paint in a rented house. The defense lawyers, in court papers, referred to some of the plaintiffs’ attorneys’ work-product as “dreck” (=”crap” in Yiddish). The plaintiffs’ lawyers fired back, hilariously, in what will forever be known as “the dreck motion.”

Last April I posted twice on the topic (here’s the second post), discussing the question of its authenticity and provenance. (A New York chauvanist had claimed it as a Big Apple production, and one source said that the motion had been drafted by goyim.)

Just this weekend, due to the miracle of Google, Neil Leifer, one of the authors of the dreck motion, saw those posts, and wrote to straighten me out on some of the history.

Your website is correct that the Dreck Motion was written in Boston, but incorrect that it was written by a non-Jew, Rob Doyle. Rob was a co-counsel of ours in the Santiago case, but the Dreck Motion was actually written by Jonathan Shapiro and me toward the end of a paper war against the lead paint industry and its legions of non-Jewish lawyers.

When the industry called our case “dreck”, Jonathan and I wrote this motion to strike the term as “impertinent and scandalous”. The Court agreed with us and the fax machines started humming overtime. As the motion worked its way across the US, we heard from friends and colleagues from the Midwest to California. An Arizona Supreme Court justice (also Jewish) gave Jonathan and me the motion of the year award; then David Margolis published a piece about the motion and us in his weekly At The Bar column in the NY Times, which catapulted us globally, resulting in a favorably editorial (I think, because I can’t read Hebrew) in the Jerusalem Post.

Anyway, the case was about the historical misdeeds of the lead industry and how they resulted in the lead paint contamination of millions of US homes, including the child in the case at bar. Dreck recognition was all we got in the case. Monica got nothing and the lead industry go away without paying her a dime.

But, since this was a historical case, I wanted to give you a chance to correct the historical record.

The holding in the case (Santiago v. Sherwin-Williams) was that, although the plaintiff had obviously been damaged by lead paint, it was impossible to tell which particular company had made the particular paint that damaged her (though all lead-based housepaint was more or less identical in terms of its risks) and therefore she had no cause of action against any of the companies. Nor, of course, did any of the other victims. Each victim had a tortfeasor, but since no one could assign a particular tortfeasor to a particular victim, they were all out of luck. (In some cases the courts have done the sensible thing and distributed liability according to market share, but apparently Massachusetts law regards statistics as a branch of necromancy and doesn’t allow for that.)

Note the absurdity of a system under which the ability of the little girl in question to be taken care of in the face of her disability rests on whether, under some arcane set of rules, an institution with money could be determined to have been “at fault.” In a saner world — or even in Western Europe — decisions about the use of lead paint would be made through regulation rather than litigation, and care for people with disabilities would be run through the health care and social service systems and not decided by courtroom lotteries. That leads plaintiff’s attorneys to try to invent liability even in cases (unlike this one) where the industry didn’t have any way of knowing the damage it was causing.

The “tort reformers” are mostly concerned to ensure that victims of injury face worse odds in those lotteries; what is to be done to discourage injurious behavior, or take care of the wounded, is beyond the scope of their inquiries.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: