PROVIDENCE -- Superior Court Judge Michael A. Silverstein declared a mistrial in the state's precedent-setting lawsuit against eight national paint companies after the six-person jury told him yesterday afternoon that it had been deadlocked since Thursday.
Four jurors sided with the paint companies and two voted for the state. A verdict must be unanimous.
Silverstein asked the jury foreman whether he thought it would be useful to return to the courthouse today for one more attempt at deliberations. The foreman replied: "I don't think so your honor."
About one minute after the mistrial became public, the stock prices of several defendants began shooting up as investors pumped hundreds of millions of dollars into company shares. The Sherwin-Williams Co. alone increased in value by nearly half a billion dollars.
Industry analysts, lead-poisoning advocates and public officials around the country have been closely following the seven-week trial because it was so different from many other lawsuits filed against the companies.
The paint companies have prevailed in every suit filed on behalf of young children who are poisoned by lead paint. Rhode Island took the novel approach of accusing the companies of creating a public nuisance. If it had prevailed in this trial, state lawyers believed going on to prove liability would have been much easier.
Paint company lawyer John Tarantino said the state's failure to convince the jury that lead-based paint is a public nuisance shows that litigation is not the answer. The state passed a new lead-enforcement law this year, he said, and it should give the law a chance to help kids.
"I hope the state will take something from this," Tarantino said. "The jury has made it clear this is not an argument you can get unanimity on."
But Atty. Gen. Sheldon Whitehouse, who filed the state's suit, said today's decision is more of a delay than a setback. He said he will call for the judge to find for the state as a matter of law. If that fails, he said he will try to start a new trial as soon as possible.
"The only concern with this delay is that more kids get poisoned and the defendants are intransigent about doing one darn thing other than be litigious," Whitehouse said.
Jury foreman George L. Mansi, of Bristol, a retired Air Force major, said he thought the state proved its case.
"I thought we had an obligation to protect the kids who can't help themselves," Mansi said. He said the jury took a straw poll last Thursday and came out 4-2 against finding a public nuisance. One person on each side switched positions during four days of deliberations, he said, but the outcome remained the same.
The biggest issue for those opposed to the nuisance finding, Mansi said, was that the state conceded it couldn't prove that any children were poisoned in hospitals, schools or other public buildings -- locations that were part of the state's argument.
The other five jurors declined to talk to reporters.
State lawyer Leonard Decof said the defendants got away with a trick question when they inquired about poisonings at hospitals, schools and other public buildings. Most young children in Rhode Island are routinely screened for lead. When elevated levels are found, the state goes to their homes -- it has rarely checked hospitals, schools or other public buildings.
After calling the mistrial, Silverstein invited lawyers from both sides to meet with the jury. He told the jurors they could answer lawyers' questions if they liked, but they didn't have to.
"It would be helpful when the case is retried, as it almost certainly will be," Silverstein said.
Decof said after the briefing he didn't want to reveal any of his strategies to the other side, but he was anxious to start another trial.
"It's an education process," he said. "We're going to be trying this case again and we'd like to know how this case was perceived."
"I'm a nonbeliever in spin and trying my case in the media," Decof added. "Any language crowing about we got them or we stopped them, that's just gingerbread. We brought a theory no one has ever advanced, and we're going forward with it."
Both sides will have 10 days to file briefs arguing for the judge to issue a summary judgment.
The state presented nine nationally recognized doctors and scientists who argued lead paint is dangerous no matter what condition it's in. They also said the presence of lead in children, even at minute levels, causes brain damage and other neurological problems.
Since Rhode Island children started getting screened in 1993, more than 35,000 have been found with lead levels high enough to be classified as poisoned, they said, and there are 30,000 high-risk houses in Rhode Island.
The companies' defense was that the law says intact lead paint is acceptable and only 1 out of 12 houses in Rhode Island treated with lead paint poses a health threat.
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 Cytec Industries.
Roberta Aaronson, head of the Childhood Lead Action Project, the leading advocacy group for lead-poisoning victims and their families, said she was profoundly disappointed by the trial's outcome.
"It sounds like a miscarriage of justice, but we're hopeful in the end justice will prevail," she said. "It seems so clear that lead paint is a public nuisance."
However the case proceeds will likely be determined not by Whitehouse, but by whoever succeeds him as attorney general.
Democrat Patrick C. Lynch issued a statement saying he was disappointed by news of the hung jury and he vowed to continue the "valiant work begun by Whitehouse to protect the most vulnerable members of our society."
Republican J. William W. Harsch was more cautious. Lead poisoning is a big issue to him, he said, but the nuisance suit is not the only way to pursue the issue.
He's also worried that if this case can't be won as a public nuisance, that might weaken the state's ability to bring similar cases where other environmental problems threaten public health and safety.
Tarantino said he hoped the candidates would let the new state law focus on high-risk properties. "We've said all along the problem is not with the majority of the properties," he said.
