A suit was filed by a Baltimore mother on behalf of her three small children who were allegedly injured by lead paint in their house. A key issue in this appeal is whether they can prove fraud under Maryland law. The paint industry, supported by an amicus brief on 12/7/04 from the NAM and other business organizations, argued that a long-standing and necessary element in a fraud claim is proving that the injured party relied on misrepresentations made by the manufacturer. Reliance is only present when the misrepresentation substantially induced the plaintiff to act. We also argued that "fraud in the air," or statements made to the world at large, can not be the basis for liability. If it were, any consumer could sue for misstatements by manufacturers whether or not they heard the statements or acted on them. This would broadly expand liability and free it from the commonsense bounds developed over centuries. Instead, the government should enforce consumer protection statutes that apply to the public at large.The Maryland Court of Appeals sent the case back to the lower court in April because of procedural problems with the appeal. The court did not address the substantive issues covered in our amicus brief.
This case is another in a growing trend of cases in which plaintiffs are trying to convert product liability and negligence claims into claims for fraud. Courts must be extremely wary of expanding legal theories when plaintiffs confuse the elements of their claims and suggest that traditional legal duties are shifting under the law. We urged the Maryland Court of Appeals, its highest court, to reject such attempts.