A decison, which could come as early as today, could force a delay in the precendent-setting case.

04:58 PM EST on Monday, March 1, 2004

BY PETER B. LORD
Journal Environment Writer

State lawyers accused the nation's paint companies of focusing on confusing the jury during the landmark 2002 trial of the state's lead-poisoning nuisance suit against the corporations.

Company lawyers countered that the state exaggerated its case to create a climate of fear.

Whichever side was right, that trial ended with a hung jury.

Now, on the eve of a retrial of the same suit, the state is pressing for a radical tactical change. It wants the case to be decided by Judge Michael A. Silverstein rather than another six-person jury.

If the state gets what it wants, that will trigger appeals and a reorganization of the case that guarantees major delays for the trial, set to begin April 5.

But Attorney General Patrick Lynch said Friday that even if the start of the trial is delayed, he hopes the judge will consolidate various phases and help the state get to the end of its case faster.

"The most important thing this would do is get us the response we think is needed [from the companies]," Lynch said.

Silverstein said last week that he hopes to render his decision today.

His ruling will be important to child advocates, government officials and financial experts around the country. They have been following Rhode Island's precedent-setting efforts to force eight corporations to clean up the lead-based paints they made and marketed two generations ago.

Lynch, like his predecessor, Sheldon Whitehouse, charges that the paint companies created a public nuisance that continues to poison nearly 3,000 Rhode Island children each year.

Last week, as many as 30 lawyers filled Silverstein's courtroom for a variety of pretrial arguments and motions.

Most important were the nearly two days of arguments over the state's efforts to have its case heard by the judge, rather than a jury.

Both sides cited legal cases going back hundreds of years involving alleged nuisances that included a wharf over England's Thames River and an offensive soap factory. One English baron claimed the erection of telegraph poles near his estate was a nuisance.

Attorney Fidelma Fitzpatrick, arguing for the state, said that while everyone has a right to a trial by jury over legal claims, the state's case is different. The state is making an equity claim, she said, seeking justice to resolve the nuisance created by the paint companies.

"Case law for more than a century says public-nuisance cases brought by a sovereign are equity," she said, and as such, they must be heard by a judge. Only a judge, she said, has the power to grant the wide range of relief sought by the state to clean up the paints, repay past governmental expenses, and educate the public.

Laura Ellsworth, representing Sherwin-Williams Co., argued that the state is basically seeking damages -- some have said billions of dollars. That means the companies have a right to a jury, she said.

John Tarantino, representing Atlantic Richfield, called the state's arguments gibberish and said the paint companies deserve the protection of a jury trial.

"This is a sovereign with a voracious appetite for a victory," he said. "This is a sovereign who does not want to try this case to a jury, plain and simple."

If Silverstein decides to hear the case, Tarantino said, the paint companies would appeal to the Rhode Island Supreme Court. But Silverstein said that if he was to hear the case, he might combine the nuisance trial with a trial over liability that was scheduled to follow.

If the judge rules for a jury trial, both sides are prepared to begin April 5. Neither side wanted to talk specifically about how that trial might compare with the last.

One big difference would be the question put to the jury.

In the last trial, the question was: "Does the presence of lead pigment in paint and coatings on houses, schools, hospitals and other public and private buildings throughout the state of Rhode Island constitute a public nuisance?"

Four jurors sided with the paint companies, two with the state.

The jury foreman said he thought the state proved its case. The biggest issue with those who disagreed, he said, was that the state couldn't prove that children were poisoned in hospitals, schools or other public buildings.

State lawyer Leonard Decof said the defendants got away with a trick question because public buildings are rarely checked for lead.

Last summer, after hearing suggestions from both sides, Silverstein crafted a new question: "Do you find a consequence of the presence of lead pigment in paint and coatings in buildings throughout the state of Rhode Island and, if any, the harm and/or threat of harm resulting therefrom, to be a public nuisance?"

Paint company lawyers said that question dramatically favors the state.

The first trial took seven weeks.

The state presented 10 witnesses. Many were among the country's leading lead scientists. They included five pediatricians, two psychologists, two state Health Department officials and a child advocate.

They argued that 35,000 Rhode Island children have been poisoned by lead in the last nine years and 30,000 houses pose urgent health risks now.

The paint companies had 38 witnesses on their tentative witness list, but presented just 3.

A Brown chemistry professor testified that lead paint would remain safe for centuries if painted over with just one coat of nonleaded paint. The head of a home-inspection company in Baltimore testified that houses with lead paint can be kept safe with good maintenance. And an economist testified that Rhode Island legislation is based on making houses lead-safe, not lead-free.

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