PROVIDENCE -- So many children have been lead-poisoned here that Providence has come to be known as the lead-paint capital of the United States. On Wednesday, the title will take on a new meaning as the state goes to trial with a lawsuit that will be watched around the nation.
Atty. Gen. Sheldon Whitehouse is seeking to hold eight corporations accountable for manufacturing or selling the lead-based paints decades ago that have been poisoning children here and around the country for years.
He wants a six-person jury to declare the lead-based paints a public nuisance, and then go on to other proceedings to assign liability and damages.
This is the first time a state has sued to have paint declared a public nuisance -- creating a condition that unreasonably interferes with the health, safety and comfort of the community.
Dozens of suits have been filed by individuals and communities against the paint companies and all have failed.
This is also the first time a state has joined forces with a major class-action litigator -- in this case the law firm of Ness Motley, the South Carolina litigators who have won huge settlements from the asbestos and tobacco industries.
THE STAKES in the lead paint trial are enormous.
Whitehouse says if he wins the case against the eight companies, he could demand money to end what health experts say is the number-one environmental health problem facing Rhode Island's children.
But one financial analyst has said that the consequences for the industry could be "catastrophic."
And the state's bankers and Realtors have warned that if all 330,000 houses suspected of being coated with lead paint are declared public nuisances, it could "prove disastrous for owners of property, lenders and mortgage bankers."
With so much at stake, preparations for the trial have proceeded on a grand scale.
The two sides have assembled enough lawyers to fill a city bus. Many are nationally recognized litigators. To accomodate them, Judge Michael A. Silverstein reserved Courtroom 11, Superior Court's largest hearing room and the scene of many past showcase trials.
The paint companies have filed motions all the way to the U.S. Supreme Court to try to sidetrack the case.
The two sides have listed more than 60 witnesses, including dozens of doctors and scientists and most of the nation's top researchers of lead poisoning.
The paint companies have already subpoenaed more than 2 million pages of documents and deposed about 130 potential witnesses.
All that discovery will be boiled down to 8 to 10 weeks of testimony before six jurors and six alternates. When it's over, the jury will be asked to address one not so simple question: Is lead paint a public nuisance?
Yes. Or no.
LAWYERS WILL portray two dramatically different pictures of typical Rhode Island homes.
"We will show that thousands of children have been poisoned and we will show the vector is the paint," Whitehouse said in an interview last week.
"We'll use a lot of expert witnesses and they will show it takes very little lead to poison," Whitehouse added. "We're not doing this house by house or child by child. The question is whether society collectively has been harmed."
The state's lawyers will argue that hundreds of thousands of houses are covered with lead-based paints that left 2,832 young Rhode Island children with signs of lead poisoning last year.
The poisoning rate in Rhode Island is more than twice the national average, prompting the state to require blood tests of every child under the age of 6.
The explanation for Rhode Island's high rate is that the state has so many older homes built before lead paint was banned in 1978. Also, many urban homes are poorly maintained. Further, critics complain that city officials have been lax enforcing building codes.
At Whitehouse's prompting, the case will be tried in phases to help simplify issues for jurors. The first phase will be to determine whether a public nuisance exists.
If the jury decides it does, Whitehouse would like to move on to determining who is liable, what the damages should be, and whether other parties should be sued. The paint companies insist landlords are the real culprits.
Silverstein has said he will wait for the finish of this first trial before deciding how to proceed.
Each side has selected three lawyers to argue its case.
The state's primary lawyer is Leonard DeCof, 78, the dean of the state's personal injury lawyers, recognized nationally for his litigation skills. A graduate of Yale with a law degree from Harvard, DeCof was retained a decade ago by Whitehouse's mentor, Gov. Bruce Sundlun, to recover millions of dollars in damages from accounting firms, insurance companies and credit union officials after the collapse of the state's credit unions.
Linn F. Freedman, 41, deputy chief of the attorney general's civil division, has argued most of the pretrial motions for the state. Originally from New Orleans, she earned her law degree from Loyola.
New to the table is Jack McConnell, 44, a partner in Ness Motley's Rhode Island office and state Democratic Party treasurer. A graduate of Brown University and Case Western Reserve University School of Law, McConnell was one of the lawyers for Ness Motley who negotiated the $240-billion tobacco settlement.
All three will take turns questionning witnesses, Whitehouse said.
In an interview last week, Freedman and DeCof declined to go into specifics of their case. But Freedman said no other lawsuit against paint companies has advanced this far.
JOHN TARANTINO, a lawyer for the paint companies, points to his own family history to argue against the state's case.
Tarantino, 48, a graduate of Dartmouth College and Boston University Law School, is president of the Providence law firm of Adler Pollock & Sheehan.
During an interview in his firm's conference room on the 23rd floor of the former Hospital Trust building, his back is turned to the windows overlooking the State House, Providence Place Mall and the Federal Hill neighborhood where he was raised.
"My grandparents came here with nothing. Zero," Tarantino said. "They ran competing fruit stands. My parents weren't supposed to even talk to each other."
Tarantino said his family moved three times on the same street -- each move brought them to a lower floor of a tenement.
After he and his wife married, their first home was in the city's West End, he said.
His parents never got to go to college. But he and his four siblings all completed graduate schools.
His point is that lead paint covers thousands of houses in Rhode Island and doesn't cause any problems if it's properly maintained.
He plans to try the case with two nationally recognized attorneys at his side.
Donald E. Scott is a graduate of Harvard College and Yale Law School, and a partner at Bartlit Beck in Denver, Colo. He successfully defended Dutch Boy paint company two years ago from a suit by high-profile litigator Peter Angelos on behalf of a 49-year-old man who said he was poisoned as a toddler. Scott's firm specializes in computer-assisted litigation.
Laura E. Ellsworth, a graduate of Princeton and the University of Pittsburgh law school, is a partner in Jones Day, one of the world's largest law firms, which touts itself as representing half the Fortune 500 companies. Working from offices in Pittsburgh, she has written and lectured nationally on the use of expert witnesses and trial tactics.
Each of the three represents a specific corporation, but because the upcoming trial is focusing on the general question of public nuisance, the three were chosen to represent all eight companies -- American Cyanimid Co., Atlantic Richfield Co., E.I. duPont deNemours & Co., NL Industries, The O'Brien Corp., Millennium Inorganic Chemicals Inc., ConAgra Grocery Products Co. and The Sherwin Williams Co.
All of these companies are big. Some are subsidaries of larger corporations. Some are not. Sherwin Williams, the country's largest paint company, has 2,600 stores, $5 billion in sales last year and 25,789 employees. ConAgra is the second largest food company in the United States, with $27 billion in sales and 89,000 employees. DuPont is the country's second-largest chemical company, with $24.7 billion in sales and 79,000 employees.
Tarantino says the paint companies believe the most effective way to deal with lead paint is to educate the public better, to make better efforts to maintain properties, and do more enforcement against landlords who let properties deteriorate to the point that they poison children.
He argues that Rhode Island law says lead paint is safe if it's intact. And he points to a recent study by a Brown University undergraduate that found 204 landlords in Providence were responsible for poisoning 2,644 young children over several years. The poisonings were tracked by the state Health Department, which mandates blood tests of young children.
"Of 330,000 properties with lead paint, 204 landlords are the bulk of the problem," said Tarantino. "To us, that demonstrates that the vast majority of lead painted properties are safe."
TWO YEARS AGO, when Whitehouse first announced his suit and Providence officials sought to file their own, the paint companies responded by hiring national public relations firms and lobbyists that included law school professors, a former congressman and a solicitor general.
But as the trial date drew closer, the companies shifted some of the work to local professionals.
To represent them here, they hired the Providence public relations firm RDW Group, which assigned Tom Walsh, a former Providence Journal reporter, and Greg Perry, a former spokesman for former Atty. Gen. Jeffrey Pine.
Likewise, the the companies assigned a Providence lawyer, Tarantino, to lead the defense.
Part of defense strategy apparently is to keep the dispute local.
"I think the issue is totally unique to Rhode Island. This is a specific question: whether lead in houses in Rhode Island is a public nuisance. It's a Rhode Island case, with a Rhode Island jury and a Rhode Island verdict," Tarantino says.
BUT OTHERS insist it's a Rhode Island case with national implications.
Financial analysts have been calling newspeople and attending hearings to keep up with the legal proceedings, which threaten to impact stock values of the defendants.
One stock analyst told The Journal that if Rhode Island wins, its suit will serve as a template for similar suits around the country.
Advocacy groups are using national list serves to keep their members informed. A local group, Childhood Lead Action Project, is collecting a pair of shoes for every child poisoned in Providence last year and plans to display them during a courthouse rally Sept. 18.
Judge Silverstein made it clear last week that he wants the jury to pay attention only to what it hears in the courtroom. And he's going to keep lawyers from taking their cases beyond the limited issues of what constitutes a public nuisance.
"The court has, it believes, reduced Phase I to an extremely narrow issue," he said to jurors and lawyers. "The court will not look favorably on anyone who in any manner seeks to take Phase I beyond the parameters I have set."
In months of pretrial arguments, Silverstein has appeared to enjoy hearing the legal arguments and solving logistical disputes posed by the legal talent facing him each day. A former managing partner in a big Providence law firm, Silverstein also was a highly touted candidate for chief judge of the state Supreme Court last year.
He was considered the least politically connected of the top candidates. And he was highly regarded by lawyers and other judges for his handling of the court's difficult special cause calender where big decisions have to be made quickly for parties seeking to obtain injunctions or end teachers strikes and other crises.
During the pretrial pleadings, he's been decisive and demanding when it comes to deadlines and legal disagreements.
At the same time, he jokes about his age -- he's 68. He banters on a first-name basis with some of the older lawyers, such as DeCof and Joseph A. Kelly. And he doesn't mind sharing jokes with the entire courtroom.
During jury selection, he made a point of introducing his stenographer, clerk and deputy sheriff to the jury and explaining what they do.
"I'm doing this so you can pay full attention to the proceedings rather than wondering what people are doing here." He made the comment with a smile, but he was clearly serious.
Look back at local efforts to combat lead poisoning, and check a current database of lead-paint inspections by community, at:
http://projo.com/extra/lead/
