Lead Paint Suits Echo Approach to Tobacco
by Pam Belluck, New York Times,
September 21, 2002
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Faced with tens of thousands of children poisoned by lead
paint, the nation's cities tried for years to tackle the
problem by going after building owners and testing children
for lead in their blood.
Now, state and local governments are taking aim instead at the
companies that made the paint, suing manufacturers in a
growing wave of cases that analysts say echoes the legal
assault that ultimately held tobacco companies responsible for
the health hazards of smoking.
A trial under way in Rhode Island, the first state to file
such a suit against paint manufacturers and one in which
nearly 80 percent of the housing is believed to contain lead
paint, is being closely watched by cities and states around
Several jurisdictions, including New York City, Chicago, St.
Louis, Milwaukee and San Francisco, have filed similar
lawsuits, contending that the companies are responsible for
the learning and behavioral problems often suffered by
"Lead paint litigation has the potential to become the next
major corporate plague, analogous to asbestos litigation in
corporate America," said Tim Gerdeman, an industry analyst
with Lehman Brothers. "It could become a major, major
financial drain for my companies. A few years ago people
seemed to discount asbestos and tobacco litigation, and shame
on those people who did, because look what happened."
The potential costs are significant. The Rhode Island lawsuit
is asking paint companies to pay for the cost of removing lead
paint from the 331,000 dwelling units the state says contain
it. The suit does not name a figure, but Attorney General
Sheldon Whitehouse said it would cost $2,000 to $10,000 to
remove lead from each house, putting the total cost at roughly
$600 million to $3 billion.
The lawsuit also seeks money for the treatment of
lead-poisoned children. In Rhode Island, more than 35,000
children under age 6 have been found to have elevated lead
levels since 1993, said Dr. Patricia A. Nolan, director of the
state's health department, who said the authorities were
continuing to see new cases at an average rate of seven a day.
Rhode Island, which has a large number of older homes, has a
higher incidence of lead poisoning than many other states.
National studies in the 1990's found that two-thirds of the
nation's housing still contained lead paint and that 890,000
children ages 1 to 5 had elevated lead levels in their blood.
The lead paint lawsuits are clearly lifting some pages from
the tobacco suits, combining the resources of state and city
legal arms with the expertise and staff of private law firms.
One of the law firms involved in the Rhode Island case
represented 28 states in the tobacco litigation.
Legal experts and industry analysts are curious to see whether
the Rhode Island case has found a way around some of the legal
minefields that have caused other lawsuits against the paint
industry, many of them filed by individuals, to founder or
have some or all of their claims dismissed.
"This Rhode Island case is not only the highest profile case,"
Mr. Gerdeman said, "but based on the first few weeks of
testimony, the plaintiffs seem to have a pretty solid
Lead paint cases face some legal hurdles the tobacco cases did
not. Lead paint, unlike cigarettes, is no longer manufactured,
having been banned by the federal government in 1978. While
the Rhode Island lawsuit accuses the industry of promoting the
use of lead paint while covering up its danger to children,
much like accusations against the tobacco companies, the paint
industry says it acted to curtail its use after it learned of
the risks, beginning in the 1950's.
While cigarettes, when used as directed, are known to cause
cancer, paint manufacturers have long contended that lead
paint itself is not hazardous, but causes poisoning only when
allowed to deteriorate to the point at which paint flakes or
dust can be ingested or inhaled.
"The companies have argued that it's only a danger if it is
peeled off and eaten," said Paul Martinek, editor of Lawyers
Weekly USA, who has followed the lead paint cases. "They can
say, `We didn't manufacture this product to be peeled off and
eaten.' And the landlords, the building owners could remove
this material if they wanted to."
That is exactly the case that the paint companies are making
in the Rhode Island case.
"Lead paint is a good product," said Bonnie Campbell, a former
attorney general for Iowa who now advises some of the paint
companies being sued. "It isn't the presence of lead paint
which causes the problem. Properly maintained, leaded paint
generally poses no hazard or risk. There is a culprit here,
and that is the landlord."
Tim Hardy, a lawyer for one of the companies, N. L.
Industries, said studies suggested that a small percentage of
the homes with lead paint were unsafe, "primarily rental
properties which are in very poor condition because there's
been no basic maintenance for years."
The success of such arguments in the past, experts say, makes
it striking that the Rhode Island case has gotten this far.
The case was filed in 1999 against a lead industry trade group
and eight paint makers, including E. I. du Pont de Nemours &
Company and the Sherwin-Williams Company.
In the courtroom this month, in the first of four phases of
the trial, pediatric and environmental health experts have
testified that lead paint is always a potential problem and
that even in homes where the lead level is low enough to meet
Environmental Protection Agency standards, there is no proof
the paint will not cause problems.
Leonard Decof, a lawyer for the state, said in opening
arguments that lead paint chips and dust could be released
into the air by hanging a picture or opening a window. He said
that paint also deteriorated naturally, no matter how
well-kept a property was.
"What more can we say than this: Lead paint, even when it's
painted over, is harmful," Mr. Decof said.
In an interview today, Mr. Whitehouse, the Rhode Island
attorney general, offered his own home as an example of the
contention that "well-maintained homes can cause lead
poisoning too." He said his two children, now 9 and 13, had
elevated levels of lead as toddlers. He said he did not know
whether they had been adversely affected.
But there are many obvious cases of lead poisoning in Rhode
Kizzy Cole said that two of her three children were
hospitalized because of high lead levels when she lived in a
rundown apartment with peeling paint in Providence, and that
her daughter, now 10, was now "kind of slow as far as learning
Kristen and Jack Field, a middle-class couple who moved into
an old colonial home in Cranston and began to fix it up
several years ago, said their two daughters had lead problems
because the home had lead paint inside and outside. "We're a
married, white, educated, middle-class family," Ms. Field, a
nurse, said. "They focus on the landlords, the slumlords, and
it's not true."
The Rhode Island case is the first to come to trial accusing
the paint companies of causing a public nuisance, a relatively
untraditional legal strategy that is being used increasingly
in other lawsuits, including some filed by cities against gun
manufacturers. In the first phase of the trial, the state is
simply trying to prove that lead paint is a public nuisance,
something posing an immediate or potential public hazard.
If the state wins the first phase, it will try to show that
the paint companies should be held responsible for helping to
correct the problem. Among other things, the state will
introduce documents that it says show the industry knew about
the hazards before it took action and described the problem as
relegated to "slum children."
"They were fighting a losing battle and tried to keep their
product on the shelves for as long as they could and they did
so at a time when they knew that the product was dangerous, in
particular for children," Mr. Whitehouse said.
Industry representatives said such documents were dismissed in
a previous lawsuit.
"The reality is that these companies really acted very
appropriately dealing with this issue, right from the time in
the late 40's that they discovered or suspected that it
appeared that poorly maintained lead paint was harming
children," Ms. Campbell said.
She said the state would be better off cracking down on
landlords, a view Mr. Whitehouse said was "a little bit like
with the arsonist saying that the fire department should be
Mr. Whitehouse said that causing a public nuisance did not
require fault or intent; someone can be held responsible, he
said, even if they acted "innocently and lawfully."
He added: "More than one person can be responsible for a
public nuisance. To the extent that landlords may bear some
responsibility, that doesn't mean that the industry's
responsibility is zero."