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Lead-paint
defendants, plaintiffs seek resolution
The
judge says he is troubled by the request.
01/23/2003
BY
PETER B. LORD
Journal Environment Writer
PROVIDENCE
-- Lawyers representing the state attorney general's office asked
a Superior Court judge yesterday to declare that they had won
their lawsuit charging that the nation's paint companies created
a public nuisance decades ago when they made and marketed lead-based
paints.
A
lawyer for the paint companies disagreed, arguing that the state's
case directly contradicted standards established by the Rhode
Island General Assembly and the state health department.
Judge
Michael A. Silverstein listened to arguments all day yesterday,
and said he would rule later. At one point he said he was troubled
by the position the two sides put him in.
"The
plaintiffs tell the court it has this remarkable opportunity and
responsiblity. But the defendants tell the court it would be unprecedented
for the court to usurp the power of the jury," Silverstein
said.
Both
sides were attempting to get a definitive resolution to the case
following a mistrial that was declared two months ago when a six-person
jury failed to reach a unanimous verdict following seven weeks
of testimony. Two jurors sided with the state; four sided with
the paint companies.
The
arguments presented to Silverstein yesterday were based on several
hundred pages of legal briefs filed after the mistrial.
Lawyer
Leonard Decof, representing the state, argued that any reasonable
jury would agree that lead-based paints have created a public
nuisance in Rhode Island. Children suffer irreversible brain damage
when they ingest even tiny amounts of dust from such paints.
Because
of the danger, 176,587 Rhode Island children have been screened
for lead poisoning in the last nine years, Decof said. The screening
itself is a burden that's evidence of a public nuisance.
What's
more, said lawyer Fidelma Fitzpatrick, also arguing for the state,
thousands of children in Rhode Island have been poisoned.
She
said Rhode Island courts have found that truck noise can constitute
a public nuisance. They have declared bad odors a public nuisance.
"If
a smell can be a public nuisance, then brain damage clearly falls
within that area too," she said.
"The
bottom line is that from the facts which were undisputed and even
admitted by the defendants, no reasonable jury would fail to find
it was a public nuisance," Decof said.
Lawyer
John Tarantino, representing the paint companies, said the state's
case is flawed because it contradicts findings of the General
Assembly and the state health department.
Both
the legislature and the health department have created policies
to encourage "lead-safe" housing -- houses where the
toxic lead paint is encased in latex paints or otherwise kept
from contact with children.
Nearly
every witness presented by former Atty. Gen. Sheldon Whitehouse
testified that lead paint, even when covered with latex paint,
always has the potential to poison children.
But
the attorney general doesn't have the right to set health standards
in Rhode Island by filing lawsuits, Tarantino asserted.
"Doesn't
he have the right to let the court decide?" Silverstein asked.
Yes,
said Tarantino, but not in a vacuum. If the legislature decriminalized
some form of behavior, the attorney general couldn't keep arresting
people on that charge, he said.
"The
legislature is charged with making the law," Tarantino said.
"The attorney general is charged with enforcing the law.
It's not his job to say, "No, I don't like it. This lawsuit
is in head-to-head conflict with the statute and for that reason
we're entitled [to have it dismissed]."
Fitzpatrick
disagreed. Both the 1991 and the 2002 lead-paint bills expressly
said they would not limit any other state law or power.
"The
statutes deal with landlords and homeowners and minimal levels
of safety," she said. "They don't address the potential
liability facing manufacturers."
Late
in the trial, the paint-company lawyers told the jury they were
shocked to learn that some of the 35,000 Rhode Island children
the state said were poisoned by lead were diagnosed improperly.
Yesterday,
lawyers for the state argued that the defense had the health department's
data base for months and were well aware that it was created using
two different types of tests on children.
"Defendants
were not deprived of the opportunity or ability to analyze this
data and determine for themselves some 'actual number' or to test
the credibility of the state's position or the opinions offered
by the state's experts," argued lawyer Neil Leifer. "Defendants'
decision not to pursue that type of cross-examination was a tactical
decision and not one driven by lack of information provided by
the state."
The
defendants are Lead Industries Asssociation, American Cyanamid
Co., Atlantic Richfield Co., E.I. Dupont De Nemours and Co., The
O'Brien Corp., Cytec Industries, NL Industries Inc., Milennium
Inorganic Chemicals, and Sherwin-Williams Co.
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