Fidelma L. Fitzpatrick

In 1900 the Sherwin-Williams Company told the readers of The Chameleon, its own house publication, that white lead was “a deadly cumulative poison,” and that “A familiar characteristic of white lead is its tendency to crumble from the surface.” In 1929 National Lead printed a paint book for children in which the rhyme ran, “This famous Dutch Boy Lead of mine / Can make this playroom fairly shine.” In the summer of 2013 both documents were in evidence in a San Jose courtroom, where Judge James P. Kleinberg of the Santa Clara County Superior Court was trying, without a jury, a public-nuisance action that California cities and counties had filed in March 2000 against the former makers of lead paint. Fidelma L. Fitzpatrick of Motley Rice was co-lead trial counsel for the People, in litigation that reached back nearly a century to the promotion of residential lead paint and forward to its continuing presence in older California housing, where it remained a live hazard inside occupied homes.

Testimony began on July 15, 2013 and closing arguments were heard on September 23. On December 16, 2013 Judge Kleinberg held Sherwin-Williams, NL Industries, the former National Lead Company, and ConAgra Grocery Products, which had assumed the liabilities of W.P. Fuller & Co. through a series of mergers, jointly liable for creating a public nuisance, and ordered them to pay for the inspection and remediation of lead paint inside homes in the ten jurisdictions; his statement of decision of January 7, 2014 set the fund at $1.15 billion. The Court of Appeal affirmed the finding of liability on November 14, 2017, the California Supreme Court declined review on February 14, 2018, and the United States Supreme Court denied the companies’ petitions on October 15, 2018. On July 17, 2019 the three companies agreed to pay $305 million to the cities and counties to remediate lead paint in their housing.

Fitzpatrick is a member of Motley Rice. She has worked on lead-pigment cases since 1998, when the firm took on Rhode Island’s suit against the industry, and she was co-lead trial counsel in the 2019 Milwaukee trial that produced a $6 million verdict for three men poisoned by white lead carbonate as small children. She is lead counsel of the plaintiffs’ executive committee in the California Essure litigation, in which Bayer agreed in August 2020 to pay about $1.6 billion, and she holds co-lead appointments in the American Medical Systems pelvic-mesh multidistrict litigation, the Philadelphia paraquat mass tort and the federal hair-relaxer multidistrict litigation.

Three Months in Providence

Fitzpatrick came to lead paint from tobacco. She joined the lawyers who would form Motley Rice in 1997, about three years out of law school, and worked on the Massachusetts, New York and Rhode Island suits against the cigarette makers. She was finishing work on the $246 billion national tobacco settlement in 1998 when Rhode Island, a state with a disproportionate share of children carrying elevated blood lead levels, asked the firm to help it sue the paint industry. “The tobacco cases were the first time that you saw public entities use the legal system in a large-scale way,” she has said. “It was the perfect storm.” Product-liability suits by individual children had largely failed, because a child could rarely prove whose pigment was in the wall, and Fitzpatrick helped identify public nuisance, a claim brought by the state on behalf of the public to abate a hazard, as the basis for the new suits. Rhode Island filed in 1999, the first state to sue the industry.

The state tried the case once, in 2002, to a jury that could not agree, and then again before Judge Michael A. Silverstein of the Superior Court in Providence and a six-person jury, against Sherwin-Williams, NL Industries, Millennium Holdings, the successor to Glidden, and Atlantic Richfield, the successor to Anaconda Copper, in a trial that ran more than three months into February 2006. Fitzpatrick had worked on the case from the beginning; she carried much of the legal research, examined witnesses, and addressed the jury in opening and closing. The historian David Rosner testified for the state about the companies’ production and marketing of lead pigments, drawing on thousands of their own documents, and at the end of January 2006 the defendants rested without calling a witness. Fitzpatrick told the court that Rosner’s testimony stood uncontroverted. The companies “didn’t warn anyone,” she said. “You don’t sell a product that will harm children.” Michael Nilan, for Millennium, answered that “There is no there there,” and Joseph Cavanaugh, for Sherwin-Williams, asked, “Where is the wicked conduct?”

In closing, Jack McConnell of Motley Rice asked the jurors, “Isn’t it convenient that everybody else behaves poorly when it comes to lead in paint except them?” and told them, of the hundreds of thousands of Rhode Island homes with lead paint, “Just because Katrina didn’t flood every home in New Orleans doesn’t make it any less of a disaster.” The jury had three questions: whether the presence of lead paint created a public nuisance in Rhode Island, whether the defendants had significantly contributed to it, and whether they should be ordered to help fix it. In February 2006 it found Sherwin-Williams, Millennium Holdings and NL Industries liable for creating a public nuisance. The state had sought abatement rather than damages, and the cost of the cleanup fell to the judge; the state’s plan estimated about 240,000 houses at some $2.4 billion. The industry had turned back roughly fifty suits by states and cities over the previous quarter century, and this was its first loss. “These cases are custom-made for the public nuisance theory,” Fitzpatrick said two years later.

Created or Assisted in the Creation

In California the suit began in March 2000, when Ann Ravel, then the Santa Clara County Counsel, filed a representative public-nuisance action on behalf of the People of the State of California against the former manufacturers. San Francisco joined in 2001, and by trial the plaintiffs were ten: the counties of Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano and Ventura, the City and County of San Francisco, and the cities of Oakland and San Diego. The trial court sustained the companies’ demurrers to the nuisance claim without leave to amend and in August 2003 granted them summary judgment on the remaining claims as time-barred; a judgment of dismissal followed that October. In March 2006 the Sixth District Court of Appeal reversed. Liability for a public nuisance, it held, turned on whether a defendant “created or assisted in the creation of the nuisance,” which the public entities had adequately alleged by pleading the companies’ affirmative and knowing promotion of lead paint for interior use, and the claim sought to prevent future harm: “A products liability action does not provide an avenue to prevent future harm from a hazardous condition.” The court also rejected the argument that the People had to plead the companies’ ability to abate the hazard.

Five more years went to the question whether the cities and counties could be represented by private lawyers paid only if they won. On July 26, 2010 the California Supreme Court held in County of Santa Clara v. Superior Court that a public entity may retain contingency-fee counsel in a public-nuisance abatement action, and the case returned to the trial court; in 2008 Fitzpatrick had published, in the Cardozo Journal of Law and Gender, an article on the use of contingent-fee arrangements by public officials to vindicate public rights. The People filed their fourth amended complaint on March 16, 2011. In the spring of 2013 Judge Kleinberg, the third judge assigned to the case, denied summary judgment to Atlantic Richfield and DuPont on April 8 and to Sherwin-Williams and NL Industries on June 12, struck the defendants’ jury demands, and set the trial for July 15.

The Chameleon and the Paint Book

A painted window can poison a child through nothing more than ordinary use. As the sash rises and the frame rubs, old pigment loosens onto the sill and the floor, and paint sold generations earlier remains an exposure source in the rooms where families still live. Lead gave paint durability, opacity and color, and manufacturers promoted it for residential interiors even as medical knowledge of childhood poisoning developed; the sale of lead paint eventually ended, but the material stayed behind, on windows, doors, kitchens, nurseries and baseboards, sometimes sealed beneath later coats until age, friction or renovation released it again. The Centers for Disease Control and Prevention had reported in 2012 that “no safe blood lead level in children has been identified,” and the California Legislature had called childhood lead exposure “the most significant childhood environmental problem in the state today.” Nationally, 5.3 percent of children living in housing built before 1950 had blood lead above five micrograms per deciliter, against 0.4 percent of children in housing built after 1978. In 2009, 10,875 children in the ten plaintiff jurisdictions had been identified as lead-poisoned. Santa Clara County alone had more than 426,000 housing units built before 1978, and Los Angeles County about 2.6 million.

The People went to trial against five former manufacturers: Atlantic Richfield, ConAgra Grocery Products, E.I. du Pont de Nemours, NL Industries and Sherwin-Williams. The record ran to 450 exhibits, 22 binders of deposition excerpts and the testimony of 18 experts, and the proof had to bridge eras, connecting industry promotion from one generation with exposure in another. Fitzpatrick and the team assembled advertisements, trade materials, scientific publications, internal documents, census and housing records, public-health evidence and exposure evidence spanning decades, and placed the promotional record alongside the medical literature, the housing data and the mechanics of paint deterioration inside a home. On knowledge, the evidence began with the 1900 Chameleon article and ran through a 1910 hearing before a House committee on a bill to label white lead “with a skull and crossbones and the words: ‘White lead: poison,’” National Lead’s acknowledgment in its 1912 annual report that lead dust endangered its workers, a 1914 speech in which Henry Gardner said the presence of white lead dust “is very dangerous to the health of the inmates,” and a 1937 conference of the Lead Industries Association at which one of the association’s doctors said that “[t]o get rid of the lead in children is almost impossible.” Joseph Cotchett, who tried the case with Fitzpatrick for the cities and counties, built his closing around a document from that 1937 gathering in Chicago of staff doctors from the paint companies, and told the court the physicians had been instructed to take no notes and disclose nothing. “They knew in the 1930s that lead poisoning of children was happening and they tried to conceal it,” he said.

On promotion, NL stipulated that it had made, sold and promoted lead paint for residential use in the ten jurisdictions from 1900 to 1972, and Sherwin-Williams that it had manufactured lead paint from 1880 and white lead carbonate pigment from 1910, including Old Dutch Process white lead in oil from 1910 to 1947; Sherwin-Williams made lead paint until 1958 and sold it until 1972, and National Lead sold Dutch Boy paint until 1980. A 1924 advertisement by a company subsidiary announced that “Cousin Susie says her health improved instantly” after her home was painted with lead. The 1929 Dutch Boy paint book set white lead in a child’s playroom. All three companies took part in the Lead Industries Association’s Forest Products campaign of 1934 to 1941, which promoted white lead for doors and windows, and in its White Lead Promotion campaign of 1939 to 1944 and 1950 to 1952; a 1940 advertisement said white lead “lends itself ideally to any paint styling desired by owner or architect, inside or out.” W.P. Fuller’s 1931 brochure carried “Directions for Use” that told consumers to put its lead paint on residential interiors. National Lead’s 1949 salesman’s manual said its lead paints could “handle any painting job, exterior or interior,” and its 1950 Handbook on Painting advised that “On interiors white lead is desired for its unique richness and solid beauty of finish.” Dr. David Jacobs, research director of the National Center for Healthy Housing, presented the abatement plan the People asked the court to order: inspections, family education, stabilization of dangerous surfaces, and safe removal or containment.

At the closing arguments on September 23, 2013, Cotchett told the court that the People had met the “substantial and reasonable” standard of proof that lead paint was poisoning children. Don Scott, for NL Industries, argued that the companies had known nothing of the risk to children early in the century, that the question was “what was known and knowable here,” and that the case should turn on “what was the prevailing standard of medicine and science at the time.” Tony Dias, for Sherwin-Williams, said the 1937 document concerned the occupational risks of working with lead and had “nothing to do with lead paint.” Sherwin-Williams had argued in writing that the 2006 appellate ruling allowed the suit only to block future harm, so that the cities and counties “cannot recover money damages or a fund to cover costs of abatement,” and that the People had failed to link the promotions to the present hazard; the defendants pointed to decisions in New York, New Jersey and Wisconsin rejecting similar suits. Judge Kleinberg asked Scott whether his position was that if the American doctors he cited “say X, that’s the end of the issue,” and added, “I am troubled by the idea that because American doctors” say something, “that’s the end of the inquiry.”

Thousands of California Children

Judge Kleinberg’s decision of December 16, 2013 ran to more than one hundred pages. He found that the companies “certainly knew or should reasonably have known that exposure to lead at high levels, including exposure to lead paint,” was dangerous to children, and that “That knowledge alone should have caused each Defendant to cease its promotion and sale of lead pigment and/or lead paint” for home use. “Instead, after becoming aware of the hazards associated with lead paint, they continued to sell it.” He found that the companies had kept promoting lead paint for decades, individually and through the Lead Industries Association, that their claims of ignorance of the danger “ring hollow,” and that “there is no safe level of exposure to lead for children.” To the argument that paint was only one source of lead he answered that “The existence of other sources of lead exposure has no bearing on whether lead paint constitutes a public nuisance,” and to the companies’ statistics: “Consistent with their arguments throughout the trial the defendants rely on statistics and percentages. When translated into the lives of children that is not a persuasive position.” “Existing programs at all government levels lack the resources to effectively deal with the problem,” he wrote, and “The Court is convinced there are thousands of California children” in the jurisdictions “whose lives can be improved, if not saved, through a lead abatement plan.”

Fitzpatrick said she was “thrilled for all the kids who are actually going to have a shot to have a safe home environment.” “It’s a great lesson in responsibility and accountability,” she said. “You make a mess, you have to clean it up.” Nancy Fineman, of Cotchett, Pitre & McCarthy, said the ruling was “going to have a tremendous impact for society,” and Danny Chou, the assistant county counsel for Santa Clara County, said, “The Court’s ruling holds lead paint manufacturers responsible for the danger that they created.” Bonnie J. Campbell, speaking for the three companies, said that “The decision violates the federal and state constitutions,” that it penalized “the truthful advertising of lawful products,” and that “It rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint”; the companies said they would ask the judge to change the ruling and appeal if he did not.

The statement of decision issued on January 7, 2014 required the three companies to pay $1.15 billion into a dedicated abatement fund administered by the Childhood Lead Poisoning Prevention Branch of the state health department, with the deposit due within sixty days of a final judgment. The ten jurisdictions could draw on the fund for lead inspections, removal and repairs according to estimates of the homes with potential hazards: up to $605 million for Los Angeles County, $99 million each for Alameda and Santa Clara counties, $77 million each for San Diego and San Francisco, $55 million for San Mateo County, $44 million for Ventura County, and $22 million each for Monterey and Solano counties. The plan ran four years, and money unspent at its end would return to the defendants. Vince Parrett of Motley Rice tried the case with Fitzpatrick; the Motley Rice team included Bob McConnell, Michaela Shea McInnis and Jonathan Orent, and the cities and counties were represented by their own county counsel and city attorneys, among them Owen Clements and Erin Bernstein for San Francisco and Chou, Greta Hansen and Jenny Lam for Santa Clara County, with Cotchett, Pitre & McCarthy, Mary Alexander and Associates and the Law Office of Peter Earle. “The abatement plan is a proactive solution to preventing lead poisoning waiting to happen due to existing paint,” Fitzpatrick said. An amended statement of decision and amended judgment followed in March 2014.

One of the Most Hazardous Uses for Children

The Sixth District Court of Appeal decided the companies’ appeal on November 14, 2017, in People v. ConAgra Grocery Products Co., reviewing the findings for substantial evidence. It held that liability required actual knowledge of the hazard, and found that Sherwin-Williams had that knowledge by 1900 and National Lead “knew of the danger to children from lead paint on residential interiors no later than 1914,” so that their later promotions were made knowingly. Lead, the court wrote, is “a toxin and causes irreversible brain damage,” and “Children are exceptionally vulnerable.” It rejected the companies’ First Amendment defense: promotions that implied lead paint was safe for interior use, made with knowledge of the hazard, were misleading, and “Defendants’ reliance on the First Amendment is misplaced.” On causation it applied the substantial-factor standard, under which a contribution need only be “more than negligible or theoretical,” and found plenty of evidence that each company’s promotions had played at least a minor role; the Forest Products campaign had promoted lead paint for doors and windows, which “is one of the most hazardous uses for children due to the dust created by their friction surfaces.” Whether the promotions were too remote from the paint now in the walls was a question of fact, and the people who had been persuaded by them were “the single conduit between defendants’ actions and the current hazard.” “Even intact lead paint poses a potential risk of future lead poisoning to children,” the court wrote. It upheld joint and several liability, because the companies had not carried their burden of proving how the harm should be apportioned, and refused to divide the fund by market share.

The court found the record silent on any promotion of lead paint for interior residential use after 1950, limited the fund to homes built before 1951, and sent the case back to Judge Kleinberg’s court to recalculate the amount and to hold an evidentiary hearing on the appointment of a receiver to administer it. The California Supreme Court denied review on February 14, 2018. The risks of lead paint, Fitzpatrick said then, “have been clear for a long time,” and every delay in funding the abatement left more children at risk of neurological damage. ConAgra and Sherwin-Williams petitioned the United States Supreme Court, in Nos. 18-84 and 18-86, asking whether retroactive public-nuisance liability for promotion nearly a century old, without proof that it had injured any individual plaintiff, violated due process and the First Amendment. Fitzpatrick and Louis Bograd of Motley Rice were among the counsel on California’s brief in opposition, with Michael Rubin and Stacey Leyton of Altshuler Berzon and the Cotchett firm. The Court denied both petitions on October 15, 2018.

A Ballot Initiative, Then $305 Million

On remand the City of San Diego proposed a fund of $730 million for the pre-1951 homes and the defendants proposed $409 million. The companies also opened a second front. In January 2018 they gave $6 million to a campaign for a statewide initiative, the Healthy Homes and Schools Act, that would have wiped out the judgment, declared lead paint not a public nuisance, and had California’s taxpayers finance remediation through $3.9 billion in state bonds. On May 16, 2018 NL Industries settled for $60.18 million, $15 million of it insurance proceeds already on deposit with the court and $45 million in cash, and agreed to withdraw its support for the initiative at once; Andre Pauka, its counsel, said that “NL would prefer that its limited financial resources be used to fund public health programs,” and the People put the balance still owed by Sherwin-Williams and ConAgra at $670 million. On June 26, 2018 Santa Clara County, San Francisco, Ann Ravel, Miguel Márquez and Dr. Jeffrey V. Smith petitioned the California Supreme Court in County of Santa Clara v. Padilla to keep the measure off the ballot, arguing that it violated the single-subject rule and that “The initiative impermissibly conceals the existence of the huge corporate liabilities that it seeks to erase.” Dennis Herrera, the San Francisco City Attorney, said the companies had been “found liable for poisoning children for profit.” Sherwin-Williams and ConAgra withdrew the initiative after legislators agreed to drop bills aimed at the companies.

On July 17, 2019, after nearly two decades of litigation, Sherwin-Williams, ConAgra and NL Industries agreed to pay $305 million to the ten cities and counties, in a settlement filed in the Santa Clara County Superior Court. The money gives the participating jurisdictions flexible funds for inspections, education, treatment programs and the safe removal or containment of lead hazards. The judgment had confined the work to interior paint in homes built before 1951 and to a four-year window; the settlement made housing built through the 1970s eligible, including exterior walls, let the cities and counties take the time the work required, and bound the companies to bring no suits against the property owners whose homes were remediated. The companies admitted no wrongdoing, and Sherwin-Williams said the 2017 decision “remains an aberration at odds with other judicial decisions across the country” and that it would “continue to vigorously and aggressively defend against any similar current or future litigation.” James Williams, the Santa Clara County Counsel, said, “This landmark settlement will allow thousands of homes to be remediated,” and “The real beneficiaries of this case will be the current and future children of California.”

The settlement translated a record built from decades-old documents into work inside existing houses. Inspectors could test windows and doors, crews could stabilize or replace dangerous surfaces, and families could learn where lead dust traveled and how to reduce exposure, for children who had been born long after the paint was sold. In Santa Clara County, the Lead Safe Homes program offers free lead-paint inspections and repairs or removal of lead hazards in eligible homes built before 1978. Habitat for Humanity East Bay/Silicon Valley administers the work, giving residents a route from identifying a dangerous surface to having it addressed.

Three Childhoods in Milwaukee

In 2005 the Wisconsin Supreme Court, in Thomas ex rel. Gramling v. Mallett, extended the state’s risk-contribution doctrine to white lead carbonate, the dry white powder that had been the pigment in most lead paint, and became the first state high court to recognize a poisoned child’s right to sue the pigment makers without proving whose product had been in the wall. A child need show only that a manufacturer “produced or marketed white lead carbonate for use during the relevant time period,” which runs the length of the house’s existence; the burden then shifts to the company to prove “that it did not produce or market white lead carbonate either during the relevant time period” or in the geographic market where the house stands. Fitzpatrick’s work contributed to the decision, and in 2008 she published its defense in the Pace Environmental Law Review, under the title Negligence in the Paint: The Case for Applying the Risk Contribution Doctrine to Lead Litigation.

Glenn Burton Jr., Ravon Owens and Cesar Sifuentes grew up in Milwaukee houses built between 1899 and 1922. As young children in the 1990s and early 2000s each swallowed white lead carbonate from the paint in those houses; their peak blood lead levels were 31, 53 and 48 micrograms per deciliter, and Owens and Sifuentes were hospitalized and treated with chelation. Dr. Besunder testified that each had lost at least ten IQ points, Dr. Trope found neuropsychological impairments in all three, and the men described their struggles with reading comprehension. Their consolidated case went to trial on May 6, 2019 before Judge Lynn Adelman in the United States District Court for the Eastern District of Wisconsin, with Fitzpatrick and Edward Wallace of Wexler Wallace as co-lead trial counsel, Robert J. McConnell, Sara O. Couch and Caroline Rion of Motley Rice, and Vic Harding, Peter Earle and Neil Leifer as co-counsel. Richard Deane, for Sherwin-Williams, told the jurors that none of the three had brain swelling, lead in their bones or abnormalities on their MRIs, and the defense argued that the men had suffered no injury at all and that the companies’ pigment had never been in Milwaukee when they were poisoned. Fitzpatrick answered in closing that lead was “a weight on their shoulders, holding them back” from careers and opportunities. The jury found that the companies had known white lead carbonate was hazardous even when used as intended, had kept marketing it for homes, and had failed to warn, held Sherwin-Williams, DuPont and Armstrong Containers liable in negligence and strict liability, and awarded each man $2 million, $6 million in all. Lead poisoning has “lasting, long-term effects, especially for children exposed at young ages,” Fitzpatrick said afterward, and it had been “an honor to give voice to these clients in Court.”

Two-Inch Coils

Essure was designed as permanent birth control without abdominal surgery. Physicians placed flexible metal coils, each about two inches long, in the fallopian tubes, where the tissue that grew around them was intended to create a lasting barrier. Conceptus developed the device, and Bayer bought Conceptus in 2013 for $1.1 billion. Women later reported that the coils had pierced the walls of the tubes or come loose entirely, with pain, bleeding and other injuries, and that removal could require a hysterectomy or other major surgery. In 2016 the Food and Drug Administration ordered a postmarket safety study, added a boxed warning to the label and required new patients to complete a checklist of the implant’s risks; sales fell about 70 percent over the next two years, and in 2018 Bayer stopped selling the device, calling the decision a business one. Because the device was meant to remain in the body indefinitely, the litigation examined its design and warnings and also what happened when a patient later reported a problem with an implanted coil.

The California cases were coordinated as the Essure Products Cases, JCCP No. 4887, before Judge Winifred Smith of the Alameda County Superior Court in Oakland, and Fitzpatrick led the plaintiffs’ executive committee. The proceeding grew from fewer than one thousand cases to more than thirty thousand, about 29,000 of them before Judge Smith by the summer of 2020, with others in the state and federal courts in Philadelphia. “Obviously the problem in the product has created many, many, many more problems than we had originally anticipated,” Fitzpatrick said in 2019. The women alleged that the device had failed to prevent pregnancies and had caused excessive bleeding, pelvic pain, organ damage, migraines and miscarriages, that it could migrate or perforate tissue, and that Bayer and Conceptus had failed to report injury complaints properly to protect hundreds of millions of dollars in sales; the plaintiffs’ experts said the under-reporting had kept Essure on the market for about a decade without adequate warnings, and Bayer’s experts answered that its complaint-reporting systems routinely passed FDA audits. Common discovery addressed design, testing, regulatory history, warnings and the manufacturer’s knowledge, while each woman’s records traced her placement, reported symptoms, imaging and later medical care, and the committee’s work was to keep the two joined as hundreds of files became tens of thousands. The women themselves drove part of it: patients who had encountered the device separately compared their experiences, organized, and pressed for the patterns they reported to be examined together, supplying the litigation with individual histories while the coordinated proceeding developed the shared design, testing, regulatory and warning record. The first trial was set for 2020 and postponed by the pandemic.

On August 20, 2020 Bayer announced agreements totaling approximately $1.6 billion to resolve about 90 percent of nearly 39,000 filed and unfiled Essure claims in the United States, with discussions continuing for the remainder. Bayer admitted no wrongdoing or liability; it said that it “sympathizes with all women who have experienced adverse health conditions, regardless of the cause,” that it “continues to stand by the science supporting the safety and efficacy of Essure,” and that it had settled to remove the “distractions and uncertainties associated with this litigation.” Fitzpatrick said the settlement “would provide expedited relief to thousands of women.” She credited the women, many of whom had spoken publicly about their injuries, with the outcome. “It was just such a powerful testimonial to me of the power to self-advocate, of not taking no for an answer,” she said, and of trusting what one intuitively knows is going on, getting to the bottom of it and taking responsibility for it oneself.

Mesh, Paraquat and Hair Relaxers

In 2012 Fitzpatrick was appointed co-lead counsel in In re American Medical Systems, Inc., Pelvic Repair Systems Products Liability Litigation in the Southern District of West Virginia, and she served as liaison counsel in the consolidated American Medical Systems cases in Delaware and the Boston Scientific cases in Massachusetts. She has tried three pelvic-mesh bellwethers, one of them as lead trial attorney against Boston Scientific. She serves on the plaintiffs’ executive committee in In re Paragard IUD Products Liability Litigation in the Northern District of Georgia, where women allege that the copper intrauterine device caused permanent infertility and other complications, and as co-lead counsel of the plaintiffs’ executive committee in the Philadelphia paraquat mass tort brought by farmers, railroad workers and others who developed Parkinson’s disease. In 2023 Judge Mary Rowland of the Northern District of Illinois appointed her co-lead counsel in MDL 3060, the hair-relaxer litigation in which women allege that chemical relaxers caused uterine cancer and other illnesses. She also represents states, cities, counties and townships in opioid litigation against manufacturers, distributors and pharmacies alleging deceptive marketing and over-distribution.

Her work spans state, federal, multidistrict and coordinated mass-tort proceedings involving toxic exposure and women’s health, and each demands the same discipline: common scientific, regulatory, design, warning and corporate records must remain usable alongside thousands of individual histories. Bellwether trials test that proof in a single case; leadership assignments require the same record to serve many represented people without losing the facts specific to each one.

Canisius, Washington College of Law and Jack McConnell

Fitzpatrick took her bachelor’s degree from Canisius College in 1991, and she now sits on the college’s Board of Regents. She considered medicine before law. “I have a great interest in public health issues, I have a great interest in women and children’s issues,” she has said, and she came to think she had misread those interests as a wish for medical school when the work she wanted was the work she has done since. She graduated cum laude from American University’s Washington College of Law in 1994 and began with gender-discrimination cases. Jack McConnell, then a member of the firm and later a United States District Judge in Rhode Island, recommended her to the lawyers who would form Motley Rice; Joseph Rice has said that “we had high regard for Jack’s opinion,” and that she became the trial lawyer McConnell predicted. She joined in 1997 and entered the state litigation against the tobacco industry, an apprenticeship in tracing corporate knowledge across scientific, regulatory, marketing and internal records and presenting that history alongside individual exposure and injury evidence. “Luck brought me here,” she said in 2019, twenty-two years in, and she had stayed for “a real passion for being able to make a genuine difference in the lives of people who are really struggling.” She is licensed in the District of Columbia, Massachusetts, New York and Rhode Island, is the Rhode Island state coordinator for Public Justice, and is a volunteer attorney for the American Civil Liberties Union.

Fitzpatrick has said that meeting clients and becoming their voice sustains her when a case becomes difficult. “The ability to come in and be their voice is really something that inspires me and keeps me going when things are rough,” she said. In mass-tort practice that commitment has a precise meaning: keeping individual histories visible within common discovery, expert analysis, leadership decisions and trial preparation, so that no client dissolves into a docket number. Her early gender-discrimination practice still informs a docket centered on women’s health, products and reported injuries that may first surface in isolated medical files, dismissed one chart at a time, and her work brings those reports into a shared evidentiary record while preserving the circumstances of the person who experienced them. “I’ve always enjoyed looking at situations others say can’t be done and finding a way,” she said in 2018. “If somebody tells me it can’t be done, I always think ‘Well, I’ll figure it out.’”