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Lead
paint rulings clear way for retrial
Atty.
Gen. Patrick C. Lynch says he will seek another trial to hold
paint companies liable for the health dangers of lead paint.
03/22/2003
BY
PETER B. LORD
Journal Environment Writer
PROVIDENCE
-- Superior Court Judge Michael A. Silverstein denied late Thursday
critical motions by both sides in the state's precedent-setting
lawsuit against companies that made lead-based paints -- opening
the door for the state to retry its case against those companies.
Atty. Gen. Patrick C. Lynch intends to seek another trial, according
to his spokesman Michael J. Healey. Healey said he didn't know
when the trial would begin or whether Lynch would use the same
team of private lawyers who helped with the state's first trial,
which ended in a mistrial last fall.
"We
respect Judge Silverstein's decision completely, but it changes
nothing, including our resolve to keep fighting to protect Rhode
Island's children from the serious and irreversible dangers caused
by lead pigment," said Lynch, in a prepared statement. "The
fight must go on -- it will go on -- and we look forward to another
day in court."
Speaking on behalf of the paint companies, attorney John Tarantino
said, "We certainly respect Judge Silverstein. We disagree
with him, that's why we filed the motions. But he wrote a clear
and understandable decision."
Tarantino said another trial would only divert energy and resources
from helping children.
"Our
view is that there are problem properties. The legislature recognized
that and set up a plan to deal with those properties. That, to
me, makes a lot of sense," Tarantino said. "To target
companies that for generations haven't marketed or sold the product
is taking the eye off the ball."
Because Silverstein rejected motions each side made to have the
other side's case thrown out, everyone can walk away declaring
at least partial victory. But his decision also means they'll
have to go through another long and expensive trial if they want
a final ruling.
The state spent seven weeks last fall laying out its case that
the paint companies created a public nuisance by making and marketing
the paints that continue to poison thousands of children in Rhode
Island. The suit ended in a mistrial when two jurors sided with
the state and four voted for acquittal.
Since then, paint companies, child welfare activists and political
leaders across the country have awaited the next step in Rhode
Island's precedent-setting case. Former Atty. Gen. Sheldon Whitehouse
initiated the suit, saying everyone is paying to clean up lead-based
paints and treat the victims, except the companies that made the
paints in the early part of the last century.
The paint companies have argued they took the paints off the market
when it became obvious that they were toxic. And they say current
employees and shareholders should not be held accountable for
corporate actions taken two generations ago.
Paint company stocks swung up and down by hundreds of millions
of dollars as the case progressed last year.
In his 12-page decision, Judge Silverstein denied one motion from
the state and three motions from the defense that would have essentially
granted a verdict that the jury was unable to reach.
Silverstein turned down the state's request that he rule as a
matter of law that lead paint constitutes a public nuisance.
The answer to whether lead paint is a nuisance is a matter of
fact, not law, Silverstein wrote, and facts are for the jury to
weigh and judge.
The paint companies asked the judge to rule that the state's case
was flawed because it argued that the presence of any lead paint
in a house was a public nuisance, while state law establishes
standards for making lead paint safe with good maintenance and
a covering of latex paint.
Silverstein ruled that the state's Lead Poisoning Prevention Act
focuses on protecting children by dealing with owners of buildings,
not with paint companies. He said the state law can co-exist with
the attorney general's right to seek equity from the paint companies
by filing the public nuisance suit.
Silverstein also rejected the paint companies' motions for a directed
verdict and their efforts to discredit state Health Department
data showing 35,000 children were poisoned by lead in the last
decade.
The companies argued that at least some of the test results came
from using the so-called "fingerstick method" of testing,
rather than drawing blood from a child's vein, which is required
by state law.
The state argued that throughout the trial it had made known to
the defendants the details of the Health Department's data base.
What's more, the state argued that it presented plenty of evidence
beyond the number of poisonings to prove lead paint is a nuisance.
It described the number of homes that need abatement, the prevalence
of lead in dwellings and the long-term damage lead does to the
nervous systems of children.
Silverstein ruled for the state. "This court believes and
this court holds that there was sufficient evidence exclusive
of the evidence with respect to the number of children who had
been afflicted with lead poisoning for the jury to have found,
if it believed in the credibility of such evidence, that the plaintiff
had proven this essential element of its claim."
Silverstein wrote that he said before the trial began that he
expressed concerns that the two sides would try two different
cases. But he said they did so anyway.
The attorney general used many expert witnesses, Silverstein said,
who presented evidence "from which a jury could have found
that the presence of lead pigment in paint and coatings constitutes
a public nuisance."
The paint companies used a few witnesses to argue that the only
harm from lead paint comes from poorly maintained or deteriorated
lead paint.
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., Millennium
Inorganic Chemicals, and Sherwin-Williams Co.
After Lynch took office in January, he dismissed Linn Freedman,
the lead trial lawyer for the attorney general's office in the
paint case. Freedman is being replaced by Asst. Atty. Gen. Neil
Kelly, who also assisted at the trial last fall.
It's not known whether the same two private firms, Leonard Decof
and Ness Motley, will be retained when the state goes back to
trial.
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