Defense lawyers for the companies say the state's own records will help them defeat the attorney general's lawsuit against them.
BY PETER B. LORD
Journal Environment Writer
PROVIDENCE -- Judge Michael A. Silverstein decided yesterday to let seven national paint companies broaden their search of state records to help their defense against Sheldon Whitehouse's lead-paint lawsuit. He approved their requests for every lead-related record dating back to 1950 and for every e-mail mentioning lead.
Judge Silverstein also rejected Whitehouse's efforts to restrict defense lawyers from interviewing former state officials as potential witnesses for the paint companies.
"The cat's out of the bag," Silverstein said, after noting that two former attorneys general, Dennis Roberts and Julius Michaelson, have been working for the paint companies for years.
Paint-company lawyers say they are certain the state's own records and public officials' comments will help defeat Whitehouse's precedent-setting lawsuit, scheduled to go to trial Sept. 4.
Whitehouse is suing the companies for damages, based on the argument that the lead paints they made and marketed until the 1970s created a public nuisance that poisons thousands of young children across the state each year. If successful, the suit could force the paint companies to pay huge damages -- so communities around the country are eyeing its progress.
Attorney Philip H. Curtis told Judge Silverstein yesterday that the mere presence of lead pigments doesn't constitute a public nuisance. And the most powerful evidence to prove that point, he said, comes from the state itself.
As one example, he said, a grant proposal from Dr. Peter Simon of the state Health Department to the U.S. Centers for Disease Control outlined the state's strategy as "in-place management because removal could be more dangerous than leaving it in place."
In fact, state law calls for lead-safe housing, not lead-free.
So far, Curtis said the state has only turned over documents from three Health Department employees. And it had yet to turn over any interoffice memorandums, notes from committee meetings, correspondence among state agencies, or e-mails.
Fidelma Fitzpatrick, representing the state, argued that the defense request is so broad that state officials don't know what to look for first.
"No matter what we give them, it's never enough. And the target is always moving," she said.
Silverstein ordered lawyers representing the seven paint companies to spend the lunch recess meeting with the attorney general's staff and the lawyers from the three firms they hired, to work out a set of priorities.
When they returned, they said they agreed the discovery process should focus on records from the Department of Health, the governor's office, the General Assembly, the Department of Human Services, the Department of Administration, the attorney general's office, the state Department of Environmental Management, and the insurance division of the Department of Business Regulation.
They temporarily settled a dispute over the paint companies' demands to depose Terrence Tierney, an assistant attorney general who has a long history of dealing with lead-paint issues for the department.
The companies agreed to put off their demands for a deposition, in exchange for the department handing over all of Tierney's records pertaining to lead paint.
Both sides continued to disagree over the companies' efforts to interview retired state officials.
Asst. Atty. Gen. Rebecca Partington argued that management-level state employees are parties to the lawsuit, so defense lawyers should notify the attorney general's office if they want to interview such witnesses.
But Attorney John Tarantino said the state was stretching its interpretation of the rules. "If you followed that, a lawyer could never contact an employee after he leaves a company."
Silverstein ruled that only current state employees would be considered parties to the case.
The defendants are the Atlantic Richfield Co., O'Brien Corp., American Cyanamid Co., E.I. DuPont de Nemours Co., Conagra Grocery Products Inc., Millennium Inorganic Chemicals Inc and Sherwin Williams Co. The state dropped its suit against the Lead Industries Association after the trade group filed for bankruptcy last month.
