A lawyer for the city of St. Louis on April 12 asked the Missouri Supreme Court to allow it to continue a lawsuit seeking damages from lead paint and lead pigment manufacturers.
St. Louis argues that lead paint poses a public health risk and that the companies who sold it in the city should have to help pay to clean it up. The suit also asks for money to help pay for future cleanup costs.
But the city cannot prove what company’s paint was put into any specific building and filed the suit as a “public nuisance” to calculate damages based upon a company’s market share – not specific claims that paint in a dwelling injured an individual.
The lawsuit was initially filed in 2000, and a Missouri appellate court last fall upheld a trial court judge’s ruling against the city.
Michael Garvin, representing St. Louis, said the defendants knew their product posed a health risk and continued selling it anyway. He said 90 percent of the homes in St. Louis were constructed before the federal government barred lead from paint products in 1978.
“All the parties sold lead paint in the city of St. Louis,” he said. “Every one of them. There is no innocent party.”
New Jersey-based Benjamin Moore & Co. is the lead defendant. The lawsuit also includes, Millennium Chemicals Inc., NL Industries Inc., PPG Architectural Finishes Inc., SCM Corp., The Sherwin-Williams Co. and XGD Inc.
Several municipalities across the country in recent years have filed lawsuits and sought damages from paint makers who used lead. In February, Rhode Island won a suit against three paint manufacturers.
Lead poisoning can cause mental problems in children, such as reduced IQ levels, attention span and behavioral problems. The St. Louis-based Alliance for Healthy Homes wrote in court documents submitted to support the city’s lawsuit that as many as 40 percent of St. Louis children have elevated levels of lead in their blood.
Benjamin Moore & Co. disputed that claim. In court documents, the company said the figure was closer to 10 percent and decreasing.
Harvey Tettlebaum, a lawyer for Benjamin Moore, said the case involved the potential for liability for a legal product, so the city should have to prove what brand of paint went into what house.
He said that hundreds of paint companies sold lead paint in St. Louis. and the lawsuit is an attempt to hold a few responsible for problems created by others.
The seven-judge Supreme Court did not immediately rule. Many of their questions centered around whether St. Louis needed to prove the defendants’ product directly injured someone.
“You don’t have to maybe identify every house, but don’t you have to identify something more than these guys sold some paint?” said Judge William Ray Price Jr.
Paul Pohl, another lawyer representing Benjamin Moore, said that allowing the lawsuit to continue would eliminate the incentive for property owners to remove lead paint from their dwellings because someone else could be paying to do it.
“You’re giving the slum landlords and bad property owners a free pass,” he said.
Several business, paint and chemistry trade groups filed briefs urging the court not to allow the lawsuit to continue, arguing that it would create a new avenue for going after paint manufacturers and would discourage business.
Case is City of St. Louis v. Benjamin Moore & Co., SC88230.
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