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 Article of Interest - Lawsuits

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 the country.

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-poisoned children.

"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 approach."

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 Island.

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 goes."

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 working harder."

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."

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