PROVIDENCE -- Questioning the adage that Rhode Island is the lead-paint capital of the world, a lawyer for the nation's paint companies made an impassioned plea yesterday for dismissal of the state's lawsuit against the companies.
Superior Court Judge Michael A. Silverstein did not rule on the motion. Instead, he continued preprations for closing arguments and his charge to the jury today as planned.
Silverstein listened to hours of arguments about just what legal advice he should impart to the jury at the close of the seven-week trial and sided with the paint company lawyers on some issues.
But at another point he issued a stern warning to attorney John Tarantino, one of the leading defense lawyers.
Silverstein said he was disturbed by the number of objections raised by the defendants when attorney Leonard Decof was presenting his opening arguments on the state's behalf on Sept. 4.
"It was unusual and unseemly for the constant objections during an opening," Silverstein said. "I say this in anticipation of tomorrow."
When Tarantino tried to respond, Silverstein held up his hand and said he didn't want to hear anymore.
On Monday afternoon and yesterday morning, Tarantino offered two arguments to support his motion for dismissal of the state's lawsuit. The state asserts the companies created a public nuisance when they made and marketed lead-based paints two generations ago that continue to poison thousands of Rhode Island children each year.
Tarantino said the Rhode Island legislature has passed laws that define lead paint as a problem that can be controlled with good maintenance and housekeeping. The state's lawsuit contradicts that position, Tarantino said, because it asserts that all lead paint, even when properly maintained, poses a hazard.
Second, Tarantino revisited an assertion he raised last week -- what he described as a recent discovery that not all of the 35,227 children the state asserts were lead poisoned since 1993 were tested properly.
"We believe the evidence is unreliable because it overstates by an unknown but clearly significant percentage," the number of children poisoned, Tarantino said.
He said state law clearly states that only a test of blood drawn from a child's veins can be considered reliable. But some percentage of the "poisoned" children were actually diagnosed with the simpler and less painful "finger stick" method, he said.
Tarantino said he didn't know how many kids were improperly diagnosed. But he said he did discover data showing that in 1994 only 751 of the 2,136 children with blood lead levels 20 micrograms per deciliter or greater were properly tested.
"So we know there are huge errors," Tarantino said. "The jury has seen exhibits that are wrong, papers that are wrong and opinions that have the wrong foundation, and I don't know how to cure that.
"It has been represented that Rhode Island is the lead-poisoning capital of the world based on these numbers," Tarantino said. "Would Rhode Island be any different than any place else if we just" counted the children who had been properly tested?
Silverstein asked Tarantino why this issue wasn't addressed during the months of discovery and in the course of the state turning over millions of pages of documents.
"The fact that I wasn't smart enough to figure this out earlier -- does that excuse mixing the numbers?" Tarantino said.
State lawyers Fidelma Fitzpatrick and Decof argued the defendants knew months ago that the two kinds of tests were used. They presented copies of depositions where company lawyers questioned witnesses about the different tests.
It's the defendants' fault that they didn't develop the issue in the course of the trial, the lawyers said.
The defendants are: Sherwin-Williams Co., American Cyanimid Co., Atlantic Richfield Co., E.I. duPont deNemours & Co., NL Industries, Millennium Inorganic Chemicals Inc., ConAgra Grocery Products Co. and added Cytec Industries.
