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3.1.2002
Lead paint lawsuit heading for trial
• Rejecting arguments from paint company lawyers, a Superior Court judge sides with the attorney general's office in moving the case forward.
BY PETER B. LORD
Journal Environment Writer
PROVIDENCE -- A Superior Court judge yesterday authorized Atty. Gen. Sheldon Whitehouse to proceed to trial with his precedent-setting lawsuit to recover damages caused by lead-based paints in Rhode Island from many of the nation's leading paint companies.
Judge Michael A. Silverstein issued his ruling to a courtroom that was standing-room-only, with Whitehouse's legal team surrounded by lawyers representing 10 major paint companies and a trade group.
Silverstein set aside a paint-industry motion to have every one of the estimated 300,000 owners of houses painted with lead pigments summoned as co-defendants. Instead, the judge sided in part with Whitehouse's proposal to try the case in phases. He approved a first phase, allowing the state to seek to prove the lead-based paints created a public nuisance in Rhode Island.
State officials said they could be ready for trial in four to six months.
"We're thrilled, truly thrilled," Whitehouse said afterward. "This means we simply have to show that an unreasonable harm was inflicted on young people who should not have been harmed."
Paint-company lawyers claimed the ruling benefits them, because it will allow them to quickly establish that childhood lead poisoning is not caused by companies that sold the paint, but by landlords who failed to maintain it.
"The facts will show that well-maintained, intact lead paint is not a hazard," said former Maine Atty. Gen. Andrew Ketterer, an industry spokesman. "A hazard arises because of neglect by some property owners, and they should be held responsible."
Whitehouse said that argument doesn't hold up because if the industry knew deteriorating paint was a problem, it should have warned every person who bought a can of its paint.
He said he was happy that the case is now on track to go to trial so facts can be presented based on the rules of evidence.
"There has been an enormous amount of spin put out by the industry," Whitehouse said. "I can't go to the Acme-Rent-a-Big-Shot Company and rent a mouthpiece to say what I want it to say. So we've been at a disadvantge in the spin wars."
Within hours, word of the ruling spread around the country. The Alliance to End Childhood Lead Poisoning, a national activist group, hailed Silvertein's ruling as a major victory. The group said some 44 municipal and county governments as well as school districts and housing authorities filed suits after the Rhode Island case was filed two years ago.
"Government suits based on public nuisance represent a whole new ball game from prior litigation against the lead industry," said executive director Don Ryan. "It's a huge win that these questions will finally have their day in court."
Each year in Rhode Island, nearly 3,000 children are poisoned by ingesting the dust or chips from deteriorating paint made with lead, according to the Rhode Island Health Department. Lead causes a wide range of neurological damage and learning problems.
Rhode Island was the first state to sue the paint companies for their role in creating the problem. The companies say they have won 40 other similar suits filed by individuals and communities and they expect to win this one, too.
In just two years, the case has grown incredibly complex. It has generated truckloads of data and records. And it has had a dramatic effect on paint-company stock prices.
Last spring, on the day after Silverstein ruled that Whitehouse could go forward with part of his case, Sherwin-Williams Co. stocks dropped 20.8 percent and the value of Imperial Chemical Industries PLC, the parent of Glidden Paint, dropped 16 percent. The prices later recovered.
Lead paints were discontinued in the 1970s. Because Rhode Island has so many older, poorly maintained houses in its cities, it has more lead-paint poisonings than most other states.
Activists in Rhode Island have complained for years that local housing inspectors don't do enough to force landlords to clean up. The state government has spent little to solve the lead paint problem, relying largely on federal grants to fund screening programs and provide cleanup money.
Whitehouse responded soon after he took office by stepping up legal action against landlords accused of letting their buildings poison children and by suing the paint companies to generate more revenues to fix older houses.
The General Assembly this year is once again considering legislation that would encourage landlords to make their buildings lead safe and guarantee insurance coverage for those who do.
(Activists and trial lawyers helped kill the bill last year because it limited the damages that could be won by victims in lawsuits.)
Stephanie Pollock, attorney for the Conservation Law Foundation in Boston, said yesterday she was pleased that the state's lawsuit is proceeding at the same time that new Rhode Island legislation is being proposed and the U.S. Environmental Protection Agency has started taking action against landlords who fail to disclose lead problems to tenants.
"There isn't one solution," she said. "There's a series of actions that a lot of different stakeholders will have to take. Pieces are coming together and the attorney general's litigation is an important piece."
Silverstein ordered the two sides to negotiate a plan for the trial by Feb. 28.
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