View this article online: https://www.claimsjournal.com/news/midwest/2007/06/15/80865.htm
A divided Missouri Supreme Court ruled against the city of St. Louis on Tuesday in a fight over who should pay to clean up lead paint in homes.
In a 4-3 unsigned opinion, the Supreme Court upheld a lower court’s finding that the city could not proceed with a lawsuit against lead-paint makers.
Lead paint has been banned since 1978 because it can cause health problems and developmental disabilities in children, but thousands of older homes still contain it.
The lawsuit sought cleanup costs from several lead-paint and lead-pigment manufacturers, including Benjamin Moore & Co., Millennium Chemicals Inc., NL Industries Inc., XBD Inc., PPG Industries Inc. and The Sherwin-Williams Co. The city was seeking to recoup lead-paint removal costs of $15 million and also hoped for money toward future efforts, an attorney said.
The question was whether the paint makers could be held responsible, even though the city could not prove they made the particular paint used in a given home. St. Louis argued that lead paint poses a public health risk and that the companies that sold it in the city should have to help pay to clean it up.
In Rhode Island, three former lead paint manufacturers who lost a landmark lead paint lawsuit last year _ Sherwin-Williams Co., NL Industries, Inc. and Millennium Holdings LLC _ could learn by mid-September what the state wants them to do to clean up contaminated properties. The process is estimated to cost billions.
St. Louis filed the suit as a “public nuisance” to calculate damages based upon a company’s market share, arguing the city in a nuisance case is not required to identify a particular product to hold companies liable.
But the state’s highest court found that court precedent requires the suing party, government entity or not, to identify the maker of a product it claims has caused harm.
“Without product identification, the city can do no more than show that the defendants’ lead paint may have been present in the properties where the city claims to have incurred abatement costs,” Tuesday’s ruling stated.
Judges Laura Denvir Stith, William Ray Price Jr., Stephen Limbaugh Jr. and Mary Russell made up the majority.
Michael Garvin, an attorney hired by the city to help with the case, said the legal effort is over, and the city will continue doing what it can with the money it has.
Garvin said it would have been cost-prohibitive to test and track down the specific source of lead paint in affected homes, and in some cases not even possible as some paint makers have discarded their old formulas.
“It probably would’ve cost more than the abatement to do all the testing,” he said Tuesday.
The opinion said the state Supreme Court previously determined that market-share liability is “unfair, unworkable, and contrary to Missouri law, as well as unsound public policy.” The court noted the actual company that caused harm could get away with no liability, while one with a sliver of the business becomes liable for much more of the problem than it caused.
The court majority said the city’s lawsuit was more like a private injury claim to recoup cleanup costs, not a public health matter.
The paint companies praised Tuesday’s ruling.
Attorney Bonnie Campbell, who represents four paint companies, said the city wanted to twist the legal standard in public nuisance law by not being required to identify who made the paint in question.
“That is inconsistent with fundamental principles of our legal system,” she said in a phone interview from Iowa City, Iowa.
Campbell also said the city is targeting the wrong interests, anyway.
“Properly maintained intact lead paint generally poses no harm to anyone,” she said. “To go after the manufacturers of lead pigment when in fact it is poorly maintained property today that is causing the problem is simply wrong-headed.”
In a dissenting opinion, Chief Justice Michael Wolff said the case is a public nuisance lawsuit, not a personal injury case, so the court precedent that the majority ruling cited was not relevant.
Wolff said because lead paint is a public health hazard, the city need not show which company’s paint was in which homes, but rather companies that sold lead paint in the city should have to pay their fair share toward cleanup.
“All of the companies that sold lead-based paint in the city of St. Louis contributed to the problem, which is not an individual injury, for which the wrongdoer must be identified, but rather is a poisonous hazard to which many may have contributed,” Wolff wrote.
Judges Richard Teitelman and Ronnie White joined in Wolff’s dissent.
The lawsuit was initially filed in 2000, and a Missouri appellate court last fall upheld a trial court judge’s ruling against the city.