Digital Extra: Poisoned

7.28.2001 00:11
Lead-paint accountability delays ruling
• A Superior Court judge rules that the state can challenge the contention of paint companies that landlords are to blame for lead-paint poisoning.

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- Who is to blame for the nearly 3,000 lead paint poisonings that occur in Rhode Island each year? The companies that manufactured the paint? Or the property owners who allowed it to chip, peel or flake?

Superior Court Judge Michael A. Silverstein made it clear yesterday he plans to focus on that single issue in coming months, as lawyers battle in the early rounds over Atty. Gen. Sheldon Whitehouse's unprecedented lawsuit against the nation's paint companies. Hundreds of millions or possibly billions of dollars are at stake.

Silverstein was expected to rule on some critical motions yesterday that would have had a major impact on the course of the state's case.

Instead, he said yesterday morning that such rulings would be premature. First, he said he wants to resolve the widely differing "theories of the case" presented by Whitehouse and the paint companies.

Whitehouse maintains the companies knowingly created a nuisance by manufacturing paint that they knew would harm people. The companies' defense has been that their paints are safe when properly maintained.

The companies moved to force Whitehouse to identify every property where there are lead hazards so they can charge the property owners with creating a nuisance.

The state sought to have that motion thrown out, arguing it was a tactic to stall the case.

Silverstein ruled yesterday that the property-identification request was "inextricably intertwined with one or more of the affirmative defenses pleaded by the defendants."

So rather than ruling on the property issue, Silverstein invited the state to legally challenge the paint companies' contention that the landlords are to blame. He said if the state filed arguments by Sept. 30, he'll give the paint companies until Oct. 30 to respond. Then he'll rule.

If the state fails to take up the responsiblity issue, Silverstein said he would give the it 45 days to respond to the request for property identifications.

Both sides yesterday put a positive spin on the judge's decision.

Former Maine Atty. Gen. Andrew Ketterer, adviser to the paint companies, issued a statement saying "The ruling puts the onus on Attorney General Sheldon Whitehoue to support his claim that the state does not have to provide all the facts. Mr. Whitehouse has until Sept. 30 to make his case or else provide detailed information about where possible hazards exist from deteriorated lead paint, and which property owners have caused those hazards."

Whitehouse said: "We are pleased with the court's invitation for the state to file papers challenging the paint manufacturers' defense and sharpen the legal issues. This provides us an early opportunity to present the court with a raod map for this case to be tried quickly, economically and fairly to all parties concerned.

"The defendants have taken no responsibility for the lead poisoning occurring in Rhode Island, and I will fight not to allow them to stall the case and face their day of reckoning."

Rhode Island is the first state to file a lawsuit holding the paint companies responsible for creating hazards that poison thousands of children. The suit is being closely watched by the industry and by many other states looking for money to help clean up housing that creates hazards due to lead.