The state continues to press its case against six other paint companies.

01:00 AM EDT on Friday, July 1, 2005

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- The DuPont Corporation has agreed to pay nearly $12 million to settle its case in the state's lawsuit against companies that made lead-based paints years ago that continue to poison children.

Attorney General Patrick C. Lynch said yesterday that he negotiated the deal, in which the money will go to the Children's Health Forum, a nonprofit agency based in Washington, D.C. that focuses on preventing lead exposure. The group would then channel the money for use in Rhode Island.

Lynch said he plans to ensure that all the proceeds will go to local efforts to clean up lead-paint hazards, to take enforcement actions against landlords and to educate the public.

Lynch's staff asked Superior Court Judge Michael A. Silverstein yesterday morning to dismiss their case against DuPont. Silverstein agreed to hear the request Wednesday. The state is continuing to press its case against six other paint companies.

Paint companies have been sued by other communities around the nation and have won every case. Rhode Island was the first state to bring a lawsuit and is the first to win a settlement.

"Today is an enormous victory for the people of Rhode Island," Lynch said. "And it is historic nationally. The idea was to get the people who made this mess help clean it up."

Both sides took pains to avoid describing the agreement as a settlement. In a news release, Lynch said "there is no settlement agreement."

In its release, DuPont referred to the $12-million deal as "an understanding" and said the case has been "dismissed" by Lynch when he recognized that the company was not an appropriate defendant.

Stacey C. Mobley, a DuPont senior vice president, said in a statement, "We have reached a thoughtful and focused alternative to litigation that addresses the concerns of the citizens of Rhode Island and enhances public awareness of the issues related to lead exposure.

"There is no settlement agreement and DuPont will not make any payment to the state or pay any fees or expenses," Mobley said.

But Motley Rice LLC, the private law firm that is helping the state bring its lawsuit against the paint companies, issued a statement referring repeatedly to a settlement agreement.

Jack McConnell, a senior partner at the firm, said Lynch wasn't concerned with what the agreement was called, as long as he got more resources to combat lead poisoning. So Lynch agreed not to call it a settlement agreement too, McConnell said.

The trial for six other corporations that made lead paint is scheduled to begin the first week of September.

A spokesman for four of those firms, Atlantic Richfield Co., the Sherwin-Williams Co., Millennium, and NL Industries, issued a terse statement yesterday:

"Questions concerning DuPont's rationale are best directed to DuPont. We believe that lawsuits against companies that long ago made lead pigments used in paint are misdirected. Those property owners who fail to maintain their properties should be held accountable."

The spokesman said no one would be available for further comment.

The other defendants are American Cyanamid and SCM/Glidden.

Former State Sen. Thomas Izzo, who wrote the lead-hazard legislation that will affect landlords and tenants in Rhode Island, is an adviser to the Children's Health Forum. The group had previously contributed money for classes offered by the Childhood Lead Action Project in Providence.

Lynch said DuPont has agreed to donate $1.5 million for education and training in Rhode Island, $1 million for community outreach, $1.75 million for enforcement, and $6.6 million to abate lead problems in 600 houses, all funneled through the Children's Forum. He said it also will donate $1 million directly to Brown University Medical School for lead-hazard research.

DuPont also said it is contributing money to the Dana-Farber/ Brigham and Women's Cancer Center in Boston, as part of the settlement.

No money is going to the government or to pay lawyers' fees, according to both sides.

"My focus was to bring money to the state to help solve these problems," Lynch said. "I personally negotiated this with the people at DuPont. And I'll work with various groups to designate where the money goes. I will see to it personally that it is all used to solve problems in Rhode Island."

Details of exactly how the money will be spent will be worked out later, Lynch said.

Former Attorney General Sheldon Whitehouse launched the lawsuit against the paint companies in 1999, saying they should help pay to clean up the lead paint that was poisoning so many Rhode Island children.

The year he filed the suit, 14 percent of the children tested in Rhode Island had elevated lead levels. Last year, the number dropped to below 4 percent.

The suit, alleging the companies created a public nuisance, went to trial in the fall of 2002. The state alleges that lead paint remained on 270,000 to 360,000 houses in Rhode Island.

The primary victims of lead poisoning are young children who get lead paint dust or flakes on their hands and then put their hands into their mouths. Tiny amounts of lead can cause widespread neurological problems, particularly for young children with developing brains.

For seven weeks a six-person jury heard testimony from some of the country's leading research scientists.

The suit ended in a mistrial. Four jurors sided with the paint companies and two voted for the state.

Lynch, who was elected attorney general shortly after the mistrial, said he was barraged with questions from financial analysts and others about whether he would keep the case going.

"I asserted on my first day in office that we would pursue this," Lynch said.

Since then the state and Motley Rice have been working to retry the case.

The last trial was to have been the first phase of a series of hearings. This time, the state is consolidating its nuisance case with evidence about liability that was to have been heard in a separate phase.

McConnell's firm is scheduled to receive a contingency fee of 17 percent of the final award should it win at trial.

But McConnell said yesterday the firm agreed to waive any claim of the settlement reached by Lynch with DuPont.

"It was that big a deal and that important," McConnell said. "This is the first crack in their defense. It's big that DuPont broke rank. They stepped forward and did the right thing. We hope others will follow."

U.S. Sen. Jack Reed called the settlement excellent news for Rhode Island and the health of its citizens and praised Lynch for his work on the case.

Olivia Morgan of the Children's Health Forum said she was looking forward to designing new programs for Rhode Island.

As new regulations go into effect to prevent future poisonings, state officials have acknowledged they have only two people to enforce them and little money for public education programs.

"This money is wonderful," said Morgan. "It's a vote of confidence."