PROVIDENCE -- The massive lawsuit filed by Atty. Gen. Sheldon Whitehouse against the nation's paint companies grew bigger yesterday when a Superior Court judge ordered that hundreds of confidential state Health Department files on active lead-paint investigations be turned over to the defendants.
Judge Michael A. Silverstein also rejected the companies' motion calling on the state to reduce the panel of 26 expert witnesses -- including 10 medical doctors -- that it plans to call for the trial.
Both sides claimed they had evidence that will destroy legal arguments used by the other side, but some worried that the growing mountain of evidence being assembled and the daunting number of witnesses being deposed may make it difficult to be ready for the trial scheduled to start Sept. 4.
The state has already turned over information on 4,214 closed lead inspections. It's now going through 57,000 pages of inspection reports it plans to hand over to the defendants after taking out information that identifies lead poisoning victims, according to Asst. Atty. Gen. Linn Freedman.
Freedman said the plaintiffs also have turned over nine boxes of records from the state Department of Environmental Management, 15 boxes of private lead-inspection reports, an index to 2,200 boxes of data at the state Building Commissioner's office, census records and more boxes of files from the attorney general's office.
Freedman objected to the defendants' demand for 413 additional files covering so-called "open cases" at the Health Department. Those are cases where a child has been found to be lead poisoned and the department inspects the child's house to determine whether there is lead paint that could have been the cause. The Health Department keeps such cases secret until it closes them by either finding no problem with the house, or finding lead and ordering repairs. In some cases, when landlords refuse to comply, complaints are filed by the attorney general's office.
Attorney John Tarantino, representing the defendants, told Judge Silverstein that the attorney general's office accidentally sent him records that included some open cases and that in the day and a half his staff read them before the state asked for the documents back, they found a treasure trove of evidence that refutes the state's argument that lead paint presents a public nuisance.
"In our view, as a matter of logic and law, if we have a statute that says lead can be in a property and those properties can be determined to be lead safe, then that is contrary to this litigation," Tarantino said.
He said he wants the active files because "these are the ones we believe will put the stake into the heart of their litigation position. We want what the attorney general and the Health Department are doing today."
Tarantino said if the files truly are instrumental to prosecuting someone, the judge could issue orders requiring the defense to keep the files confidential.
Freedman argued that the 4,214 closed cases already turned over to the defense are little different from the few hundred open cases.
"They haven't shown a need for these records that truly are privileged for law-enforcement purposes," Freedman said.
Judge Silverstein ordered that all the documents be turned over to the defense. He left it to the lawyers to work out details on what confidential information might be blacked out.
Silverstein rejected a separate defense motion for the state to reduce its panel of projected witnesses.
Attorney Joseph Kelly said that when he looked at the list of 26 "possible" witnesses, it reminded him of the Alperts furniture commercial where the wife is sawing away at her living-room set while her husband intones that she "might" be a winner.
He said there were so many names, he wouldn't have time to prepare rebuttal witnesses.
Fidelma Fitzpatrick, representing the state, said lead is a multifaceted problem and the state has found a variety of experts to testify about it. And she said they will contradict the defense arguments.
"They will educate this court about why lead-safe properties are a threat to children," she said.
She said the defendants already have deposed officials in 12 Rhode Island communities about possible lead hazards. They should have no trouble deposing the state witnesses in the next few weeks as well, she said.
