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7.21.2001
00:05
Paint companies accused of trying to stall lead suit
• The state's lawyers object to nine companies' request to identify all housing units contaminated by lead paint.
BY BRUCE LANDIS
Journal Staff Writer
PROVIDENCE
-- If the paint industry has its way in pretrial maneuvering, the state's lawyers said in court yesterday, it could either kill the state's lead-paint poisoning case or delay the trial for years.
"We can't prove this case property by property," the way the paint companies want, said state lawyer Leonard Decof. "We have to prove our case through expert and statistical evidence."
The state's lawyers accuse the paint companies of trying to stall the case, and of waging a "war of attrition" to keep it from coming to trial.
Paint company lawyers, meanwhile, said that for them to get a fair trial, the state must show which Rhode Island houses, perhaps hundreds of thousands of them, constitute legal "nuisances" because of lead paint.
Exactly which buildings the state claims are lead-paint nuisances is "the single-most important body of evidence in this case," said Philip Curtis, a New York lawyer representing the paint companies in the case brought by Atty. Gen. Sheldon Whitehouse.
Not telling the paint companies which buildings the state thinks are a legal nuisance, Curtis said, would leave his clients with only "half a case."
After the hearing, state Superior Court Judge Michael A. Silverstein said he will rule on the motions within a week.
As the lawyers left the courtroom, Whitehouse dismissed the paint companies' maneuvering as "a stall tactic." He said he's confident the state will prove the elements it must: that there has been enough harm to amount to a legal nuisance, and that the paint companies are responsible because of how they marketed their products.
Whitehouse's lawsuit names Lead Industries Inc., American Cyanamid Co., Atlantic Richfield Co., E.I. du Pont de Nemours and Co., The O'Brien Co., Glidden Co., NL Industries Inc., SCM Chemicals and Sherwin-Williams Co. The high-stakes battle could cost the companies huge sums in lead cleanup costs.
The case is only in its preliminary rounds, with disputes over what information each party has to supply to the other, when they will have to produce it, and which issues in the case should be tried in what order before Silverstein. The lawyers, however, said some of those preliminary questions could decide the case.
Half of Rhode Island's 415,000 housing units were built before 1978, when lead paint was banned, and thousands of children continue to suffer from lead poisoning.
Children in Rhode Island are lead poisoned at a rate 21/2 times the national average, and Providence children are lead poisoned at 4 times the national average.
The state wants to divide the case, so it can first try to show that the companies are liable for damages, and then argue about what they should do to make amends. The companies don't like that approach because it would make their defense harder.
Whitehouse is opposing the paint companies' efforts to bring thousands of Rhode Island landlords, owners of buildings with lead paint in them, into the case as additional defendants.
Decof said the case is at "a critical junction," and that the state could find itself "out of the ball game," depending on how the preliminary arguments turn out.
He said both sides know perfectly well it's impossible to do what the paint companies want: identify which company supplied the paint for each building that the state thinks is a nuisance.
"By their own statements, it's impossible to tell scientifically whose homes have whose lead paint in them," Decof said.
On the other hand, Paul Michael Pohl, a lawyer for Sherwin-Williams, said his company stopped making lead paint in 1947, long before the government ban in 1978.
"If they can't identify Sherwin-Williams products, we think we should be out" of the case, Pohl told the judge.
"They've been up this road time and time again," Decof said of the paint companies' successful record of warding off lawsuits. If Silverstein rules for the company on the information requests, he said, "we'll never get to trial."
A major disagreement running through yesterday's hearing concerned when and why lead paint becomes dangerous.
The paint companies argued that well-maintained lead paint, which isn't cracking or peeling, is safe. And Curtis, the paint company lawyer, said that "if lead paint exists in a hazardous, or deteriorated state, it's the responsibility of the property owners," not the paint companies.
In contrast, Linn Freedman, a lawyer in Whitehouse's office, said that "our claim is not deteriorating lead, it's all lead."
Although paint company lawyers were dismissive of Whitehouse's lawsuit, the hearing also suggested that the paint companies are taking the case, and its public-relations aspects, seriously.
In addition to the several lawyers making arguments during the hearing, the defendants brought along their own attorney general, former Maine Atty. Gen. Andrew Ketterer, to serve as a spokesman, and another lawyer, Michael Nilan, to serve as an "off-the-record spokesman." Former U.S. Atty. Gen. Dick Thornburgh has also served as a paint-company spokesman.
Whitehouse said the size of the paint companies' legal artillery is partly why he brought a big national law firm, Ness, Motley, Loadholt, Richardson and Poole, with a track record of successful cases against the asbestos and tobacco industries, into the case on the state's side.
Whitehouse said he wants to show that "we, too, have the horses to stay in a war of attrition, if that's what they want."
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