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Last Updated: 04/12/2018


High-stakes Lead Paint Case to R.I. Supreme Court

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Eric Tucker, The Boston Globe, May 13, 2008

Three companies that once made lead paint have spent nearly a decade fighting off a lawsuit that could force them to pay billions to clean up contaminated properties.

The case heads to the Rhode Island Supreme Court on Thursday, more than two years after a jury found that Sherwin-Williams, NL Industries Inc. and Millennium Holdings LLC were liable for creating a public nuisance in the first verdict of its kind.

The state of Rhode Island says tens of thousands of children have suffered lead poisoning in the last decade while hundreds of thousands of properties, especially in older and poorer neighborhoods, are contaminated.

The verdict did not carry a monetary value, but a state plan presented to the court last year estimated costs of $2.4 billion to inspect, clean and remodel some 240,000 homes built before 1980.

After a series of setbacks last year, advocates for a broad remediation effort are trying to regain momentum.

"If we can't do it there, it starts to look a lot worse for our side," said Ralph Scott, community projects director for the Alliance for Healthy Homes, a Washington public interest organization focused on childhood lead poisoning.

The three companies made the lead pigment used in paint decades ago to make it more durable. Lead paint was banned from U.S. homes in 1978 after studies showed that children who inhale lead paint dust or eat flaking paint chips can suffer learning disabilities and brain damage, among other problems.

Local governments have had little success going after the industry. Part of the reason is because it's difficult to prove which company's product is responsible for contaminating a particular building or poisoning an individual child.

Rhode Island, which in 1999 became the first state to sue, avoided that problem by pinning its case on a different legal theory.

It argued the collective presence of lead paint in the state was a nuisance that interfered with the general public's health, safety and peace. It said the three companies substantially contributed to the nuisance.
"It's a very creative theory that the plaintiffs have used successfully up to this point," said David Logan, dean of the Roger Williams University law school.

After an initial hung jury in 2002, a second jury found the three companies liable while clearing a fourth, Atlantic Richfield Co.

The companies say the public nuisance theory is flawed because it allowed a jury to hold them responsible without any evidence about how much, if any, of their paint remains present in Rhode Island. They say problems with lead paint are confined to poorly maintained properties and point out that the number of lead poisonings has been dropping steadily.

A report issued this year by the Rhode Island Department of Health indicated that new cases among children screened for lead poisoning has declined dramatically from 6.6 percent in 1998, to 1.3 percent in 2007.

Still, 388 children were poisoned for the first time in 2007, the state reported.

The companies declined to comment.

The public nuisance theory has not worked everywhere.

The New Jersey Supreme Court last year dismissed a public nuisance lawsuit filed by 26 cities, towns and counties, ruling among other things that landlords who allowed their properties to deteriorate were more to blame than companies that made a legal product decades ago. A Milwaukee jury last year rejected a suit against NL Industries, saying that though a public nuisance existed, the company wasn't responsible.

Similar lawsuits in Santa Clara County, Calif., and Ohio -- the only other state that has sued -- are pending.

The Rhode Island court is expected to decide the case this summer, with a ruling that could either clear the path for additional lawsuits, or reverse what has been a signature victory against the industry.

Jack McConnell, a private lawyer hired to represent the state, said attorneys general from other states have told him they are weighing their own cases against the industry.

But Michael Green, a law professor at Wake Forest University, who specializes in mass torts and is familiar with the case, said he doubted the lawsuit would resonate far outside Rhode Island, in part because it's a difficult case to prove.

"I don't see this as being all that significant except for the people who are parties in Rhode Island," he said.
Even if the court upholds the verdict, it could be years before any homes are cleaned up. The state's $2.4 billion cleanup plan is under review by public health experts. They will use the proposal to make their own recommendation, but the scope and cost could be dramatically scaled back.

The companies are likely to appeal any cleanup plan.

Roberta Hazen Aaronson, executive director of the Childhood Lead Action Project, an advocacy group, said childhood lead poisoning remains an "epidemic" in Rhode Island. She said the state and landlords don't have the resources to deal with the problem and need the companies' help.

"There is a need for the industry to come to the table and to put in its fair share."


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