PROVIDENCE -- The trial of the nation's paint companies ended yesterday much as it began seven weeks ago, with lawyers on both sides portraying dramatically opposing pictures of the dangers that lead paint poses to young children living in Rhode Island.
Some say this trial could be historic because -- depending on how the jury rules -- it could either open the floodgates for many other lawsuits against the paint companies, or deter other communities from trying. Lawyers in the crowd said the rhetoric lived up to the occasion.
Closing arguments lasted all day before a courtroom packed with stock analysts, child advocates and industry lawyers.
Using blunt language, old axioms and modern electronic equipment, attorneys for the state and the paint companies criticized one another's witnesses, legal theories and trial tactics before the six-person jury.
"I suggest to you that the state has used exaggeration to try to create a climate of fear about this issue, to persuade you to follow the attorney general into uncharted territory," defense lawyer Donald E. Scott said to the jury.
State lawyer Leonard Decof told the jury he was astonished when the companies put on only three witnesses to counter the testimony of the nine nationally recognized doctors and scientists who testified for the state.
"It was like an all-star baseball team playing against a Little League team," Decof said. "Imagine an 8- or 9-year-old trying to hit a Roger Clemens fast ball. The 'little three' never gave a direct answer."
The state is trying to prove the paint companies created a public nuisance by making and marketing lead-based paints two generations ago that continue to poison nearly 3,000 Rhode Island children each year.
Under a plan proposed by Atty. Gen. Sheldon Whitehouse, the state's original lawsuit was broken up into phases. If the state wins the initial phase declaring a public nuisance, it wants to move on to additional trials that would determine who is liable and what the remedies should be.
Judge Michael A. Silverstein insisted that arguments in the current trial should go no further than the public nuisance issue. But lawyers on both sides strayed a bit. And both sides ended up using using the same illustration of Rhode Island's housing problems to reach opposite conclusions about the risks posed by lead paint.
They focused on a so-called housing pyramid that starts with a broad base of 320,000 houses that have lead paint on them but are considered low risk because the paint is well maintained or covered.
Next come 60,000 rental units that require minimal maintenance. Higher up are 30,000 low-income rental units considered a high risk for lead poisoning. Above them are 1,000 to 2,000 units where children are poisoned. And at the summit are 100 units whose owners are in housing courts because of continued violations.
"The state wants you to sweep all these houses into the same category of public nuisance," defense attorney Scott said to the jury. "That's not fair to the people who maintain their houses."
But Decof said the fact that people generally agree that there are 30,000 high-risk housing units in Rhode Island proves that lead paint is a public nuisance.
"Here we have 3,000 kids a year being poisoned. Is that a harm the public shouldn't suffer?" Decof asked. "To me, that's a slam dunk. We have 30,000 at-risk housing units. Is that a harm the public shouldn't suffer? Another slam dunk."
Scott said the lawsuit boils down to a simple disagreement. The defense believes lead paint is a hazard only when it's deteriorated or damaged. He said the state maintains lead is hazardous regardless of condition.
He said a paint company witness, Patrick Connor, a lead-inspection expert, reported finding lead hazards in just one out of 12 houses he reviewed.
"The state has called nine witnesses to tell you what you already more or less know -- that lead is dangerous to children," said Scott. "The defense called fewer witnesses to address what we believe is the real issue. Does well-maintained paint pose a risk?"
Scott said several of the state witnesses stated opinions about lead paint during the trial that differed from what they said elsewhere.
He said the number of poisoned children has dropped precipitously in Rhode Island, falling from 32.5 percent in 1993 to 8.1 percent in 2001.
"The numbers are going down and more than 90 percent of the properties in the state are well maintained and don't pose a hazard," Scott said.
Decof said the problem is lead paint, but the paint companies "define the problem as us. We say the kids wouldn't get poisoned if the paint wasn't there. They say we didn't clean."
Referring to the doctors and scientists who testified for the state, he said, "You have heard from the brightest and the best in the country. The leaders in this field internationally. Genuine American heroes. They are all brilliant."
Many of the state witnesses refused to take money for their testimony, Decof said, because they are so passionate about trying to help children.
As for the paint company witnesses, he referred to Prof. Gordon Rausser, whose consulting firm charged the paint companies nearly $600,000, as "the $600,000 man."
Decof noted that Joseph Stein, a Brown chemistry professor, testified that lead paint can last for centuries, but Decof said he has to repaint his house every five or six years. "Maybe I'm missing something."
And Stein knew so little about lead paint, he charged the paint companies $30,000 just to read articles so he could prepare for trial, Decof said.
One by one, Decof and attorney Linn Freedman showed the jury pictures of their witnesses and summations of their testimony, which concluded that any lead in a child's body or on a house is dangerous.
He said the defense has mischaracterized the state's case.
"There's a saying lawyers use," Decof said. "If you don't have the facts on your side, argue the law. If you don't have the law, argue the facts. If you have neither, confuse the jury."
Silverstein was to instruct the jury today and afterward, deliberations were to begin.
Find out more about lead poisoning in Rhode Island, how to cope with it and the state's case against the paint companies at:
http://projo.com/extra/lead/
