PROVIDENCE -- The state opened its landmark trial against the paint industry yesterday by demonstrating that since 1993 nearly 35,000 Rhode Island children have been lead-poisoned and the poisonings are continuing at a rate of 7 a day.
'This case is about the right of the public to be free of harm," said lawyer Leonard Decof, representing the state. "The lead paint in houses represents a ticking time bomb. This is a tragedy that repeats itself every year."
Dr. Philip J. Landrigan, the state's first witness and a nationally recognized expert on lead poisoning, testified that 900,000 children a year are poisoned across the country and he has determined they suffer brain damage that causes annual losses in productivity of $43.4 billion nationally and $135 million in Rhode Island.
"Basically what we have in the U.S. is an epidemic of lead-poisoned children," Landrigan said.
Paint company lawyers countered that while Rhode Island does have a problem with lead paint, it's because a minority of landlords and homeowners don't maintain their houses; on most houses lead paint is safe, they say.
State officials estimate that 331,000 houses in Rhode Island have some lead paint on them and medical data shows children in 28,397 of those houses have been lead-poisoned, according to Donald E. Scott, a paint company lawyer.
That means that in 11 out of 12 houses lead paint is not harming anyone, Scott said. "This is where the two sides part company. The attorney general says the presence of lead is a public nuisance wherever it is found. But they are condemning 11 homes along with each one" that has actually poisoned a child.
The two sides battled with numbers, color graphics on a video screen the size of a picture window, and a flurry of private legal arguments in the corner of Judge Michael A. Silverstein's courtroom during opening arguments yesterday morning.
Lawyers, child health advocates, stock analysts and journalists from local television and newspapers as well as national trade journals and lawyers filled the courtroom. Slides and photos displayed on the big video screen were replicated on nine smaller monitors throughout the courtroom.
The opening was delayed nearly half an hour because several jurors were late due to what the judge described as "some sort of massive traffic jam."
There were more delays as lawyers raised objections to each other's opening arguments. When Scott showed slides excerpting state and federal documents, Linn F. Freedman, deputy chief of the attorney general's civil division, objected because she said Scott hadn't shared the slides beforehand with the plaintiffs. Scott said the slides were among documents that he did show the plaintiffs.
After a lengthy debate, Silverstein allowed Scott to resume his opening remarks. But the judge said sternly, "In the years I have been on the bench, I have never had the disruption to opening statements that has occurred in the course of this morning."
Nearly everyone agrees the stakes are high in this trial. The state is asking the jury of four women and two men, chosen last week, to agree that the presence of lead paint creates a public nuisance. If it does, there would be subsequent trials to determine damages and liability, and others are certain to sue the paint companies. If the state loses, it could have a chilling effect on others thinking of suing.
On Tuesday, Lehman Bros. released an analyst's report on one of the defendants, Sherwin-Williams Co., that was filled with glowing expectations for the company's future. But it warned that because of the lawsuit, "the next 8 to 10 weeks are critically important."
"At a minimum, these lawsuits force companies like Sherwin-Williams to spend financial and managerial resources to prepare their defense to each case, resources that would be more productive if they were focused on the day-to-day business," the report said.
Other defendants are: American Cyanimid Co., Atlantic Richfield Co., E.I. duPont deNemours & Co., NL Industries, Millennium Inorganic Chemicals Inc., ConAgra Grocery Products Co. and Cytec Industries (lawyers for both sides confirmed yesterday that in pre-trial actions, Silverstein removed The O'Brien Corp. from the list of defendants, and added Cytec.)
John Tarantino, representing the paint companies, said he will present evidence showing that the majority of Rhode Islanders maintain their properties and have no trouble with lead paint that's kept intact.
Most children don't get poisoned. And the number of those who do is going "deliberately, purposely and undoubtedly down," he said.
Landrigan, the state's first witness, agreed the number of poisonings is declining, but he disagreed with the concept of "intact lead paint."
Pointing to the courtroom walls, he said, "This paint is beautiful today, but who knows what it will be like in a week."
He said lead paint may deteriorate any time that windows and doors are opened or closed and every time a child bangs into a wall.
"The ultimate way to protect a child is to get rid of lead paint," Landrigan said. "There is no other way."
Average blood lead levels did decrease dramatically from the mid 1970s to the mid 1990s when the EPA gradually banned the use of lead in gasoline, Landrigan said. Since then, he said, the rate of decline has become painfully slow.
