01:00 AM EST on Thursday, March 4, 2004

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- Just weeks before the scheduled retrial of the state's landmark nuisance lawsuit against the nation's paint companies, a Superior Court judge yesterday ordered postponement of the trial for another year.

The trial was set to begin April 5. Judge Michael A. Silverstein rescheduled the first day of the trial for April 6, 2005 -- if lawyers on both sides are ready.

The delay was initiated by the state attorney general's office. Special Assistant Attorney General Neil F.X. Kelly asked Silverstein yesterday morning to delay the trial until next January. The state wanted time to review Silverstein's rejection on Monday of the state's motion for a trial before a judge rather than a jury.

At the same time, the state proposed consolidating the upcoming nuisance trial with a trial over liability issues that was to be conducted later. That way, lawyers said, even though the trial starts later, final resolution of the case would occur sooner.

Paint company lawyers welcomed consolidation of the trials. They said that was their preference all along. But they weren't sure if they could be ready by January.

"We suggest April 6, 2005, subject to that being the Red Sox opening day," joked John Tarantino, who represents Atlantic Richfield Co.

Silverstein said that excuse wouldn't work. He's a Yankee fan.

Although if the Red Sox play the Yankees on that day, that would be another matter, the judge said with a laugh.

The trial's postponement came in the midst of a flurry of motions by both sides to variously drop the case, change its format or limit certain witnesses.

The state is the first in the country to sue the companies for creating a public nuisance by making and marketing lead-based paints that continue to poison children.

In 1999, when then Attorney General Sheldon Whitehouse first filed the suit, 14 percent of the children tested in Rhode Island had elevated lead levels. By 2002, when the state first brought the case to trial, the incidence dropped to 6.4 percent -- 1,534 children.

The seven-week trial ended in a mistrial, with two jurors voting for the state and four for the defendants.

Tarantino told Silverstein yesterday that was the most difficult trial he had ever participated in because there were so many limitations and stipulations set by the judge.

In response to the state's motion for a new trial that would resolve all the nuisance and liability issues, Tarantino said he wanted to spend four more months collecting evidence and doing more discovery before he would speculate on when the companies would be ready for trial.

But Jack McConnell, on behalf of the state, argued for setting a definite date. "We have some incredibly busy, world-renowned attorneys here that are difficult to schedule," he said.

McConnell said the state plans to file an appeal to the Rhode Island Supreme Court of Silverstein's decision to have another trial by jury.

Normally, such an appeal would stop the lower-court proceedings. But lawyers on both sides said they'd ask the Supreme Court to let discovery proceed in the case so some kind of trial can go ahead as scheduled next year.

Silverstein said he will decide next year if both sides are ready for trial.

Kelly continued to press for the January trial date. But Silverstein went for April, saying there is a tremendous amount of work to do to prepare.

Bonnie Campbell, spokeswoman for the paint companies, said her clients were happy with yesterday's decisions.

Maybe the state could use the next year, she said, to focus its efforts on what she believes are the real culprits, the landlords who let the paints deteriorate and poison places where children play.

"If your goal is to protect children from exposure to deteriorating lead paint, why not take the fastest recourse available -- enforce the laws and require landlords to maintain their properties," Campbell said.

The defendants are the Sherwin-Williams Co., Atlantic Richfield Co., NL Industries, Amercian Cyanamid Co., Cytec Industries, E.I. du Pont du Nemours and Co., ConAgra Grocery Products Co. and Millennium Inorganic Chemicals Inc.

DIGITAL EXTRA: Revisit a Journal series on young lead-paint poisoning victims, find resources on lead-paint poisoning, browse a database of local inspections and more at:

http://projo.com/extra/lead/