R.I. Supreme Court to Hear Lead Paint Makers’ Liability Appeal Today

May 15, 2008

Three U.S. 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.

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 (euro1.55 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.

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 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 is present in Rhode Island. They say problems with lead paint is confined to poorly maintained properties and point out that the number of lead poisonings has dropped steadily.

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.

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