Ohio 3rd State to Reject Cases Against Paint Manufacturers

June 26, 2007

Ohio is the third state this month where courts have rejected the lawsuits by parents whose children were made sick by lead paint against the companies that might have made the paint.

The state is the third this month where efforts have been rejected by parents whose children were made sick by lead paint to sue the companies that might have made the paint.

The Ohio Supreme Court refused to hear a case in which eight mothers sought to hold current and former paint manufacturers collectively responsible for the poisoning of their children.

The high court’s 6-1 decision let stand a lower court ruling that said parents must specifically identify who made the offending paint in order to collect damages.

The decision has at its heart the primary sticking point in lead paint lawsuits percolating around the nation: Who, if anyone, should pay for damages, including clean-up, from toxic lead that for decades created the pretty colors people slapped on their walls?

Manufacturers argue making them pay proportionately as a group, under a legal theory called market share liability, without proof of specific wrongdoing is simply unjust. Lawyers for families, meanwhile, argue it is virtually impossible _ given the way lead-containing paint pigments traditionally were combined _ to pinpoint the single company at fault.

“What the defendants should answer to is why they believe solely because of the fungible nature of their product, because it can be mixed together so you can’t tell who made it, that they should get off,” said Cleveland attorney Michael O’Shea, who represented mother Renita Jackson and others in the Ohio case. “They knew what they did, and they poisoned kids.”

Minneapolis attorney Scott Smith, one of the manufacturers’ lawyers in the case, said the majority of other states have already rejected theories of collective liability in lead-paint cases _ and for good reason.

“We continue to maintain that what causes kids harm, what causes them lead paint exposure, are the landlords and their upkeep of the property allowing the property and the lead paint to fall into disrepair,” he said. “That’s not just our position, that’s also the position of the U.S. EPA and others.”

O’Shea said the Ohio high court’s decision not to hear Jackson’s case, first filed in 1992, should not have bearing on future lead paint cases in the state.

“It just means that Renita Jackson’s case is over,” he said. “It involved facts unique to that case, not any global issue resolution. They said she specifically couldn’t ID the paint maker involved.”

Smith said, however, that manufacturers view the decision as having broad implications for future actions against paint makers.

“I think any plaintiff in Ohio who attempts to press a lead paint case against the manufacturers will find the door closed, based on the decision in the Jackson case,” he said.

Smith contends that only one state, Wisconsin, has held out against rejecting the idea that the lead paint industry should be subject to market share liability, which says each company is liable in proportion to the share of the market it controlled at the time.

Supreme Courts in New Jersey and Missouri have both issued rulings in lead-paint cases this month siding with the manufacturers. Rhode Island won a significant victory over manufacturers last February _ worth potential multiple millions of dollars in clean-up _ but that case has also been appealed to that state’s Supreme Court.

O’Shea said memos filed in the Rhode Island case showed that manufacturers were aware of the risks of lead exposure decades ago and expected them to fall disproportionately on inner city residents. He said the companies should bear responsibility despite the fact that many have been bought and sold many times over since the federal government banned lead paint in homes in 1978.

“Everybody mixes paint. Just go into any hardware store and ask for your color and you’ll see,” he said. “It’s been that way since the 1950s.”

Bonnie J. Campbell, a spokeswoman for manufacturers Atlantic Richfield Company, Millennium Holdings, LLC, NL Industries, Inc. and The Sherwin Williams Company, said in a news release last week: “For nearly two decades of litigation, plaintiffs have moved from legal theory to legal theory, and venue to venue, in an attempt to place the responsibility for poorly maintained properties on the former manufacturers of lead paint.” Campbell is former attorney general of Iowa.

Smith added that the fact some families have been able to successfully sue delinquent landlords for lead paint damages proves that they have legal options beyond going after the lead paint industry.

O’Shea called the release a fraud.

“We still have the ability to file personal injury lawsuits, and we are deciding whether to go that route,” he said. “In the end, they just don’t care what they did to people.”

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