Sherwin-Williams loses its motion to keep decades-old advertisements out of the state's second trial of national paint companies.

01:00 AM EDT on Tuesday, October 18, 2005

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- Decades ago paint companies produced advertisements extolling the benefits of using lead-based paints to keep nursery walls sanitary and bathrooms beautiful. Many focused on babies and small children.

Yesterday, the Sherwin-Williams Co. lost its motion to keep similar historic advertisements out of the state's second trial of national paint companies, set to begin next week.

The state is accusing five companies of creating a public nuisance two generations ago by making and marketing lead-based paints that it says continue to poison young Rhode Island children at the rate of about 100 a month.

Lawyer Joseph V. Cavanagh Jr. argued that the paint company's advertisements were commercial speech that should have been protected under the U.S. Constitution's First Amendment.

"The evidence may be relevant and not violative of the First Amendment," Superior Court Judge Michael A. Silverstein said to a courtroom packed with lawyers. Promotion of lead-based paints was part of the nuisance allegation, he said.

Silverstein also ruled that if the six-person jury finds the companies created a public nuisance, it can decide on an appropriate remedy.

And he rejected a motion by one defendant, Millennium Holdings LLC, to dismiss the charges against the company. The judge said evidence gathered by discovery "clearly indicates" that one of Millennium's predecessor companies manufactured lead pigments.

Yesterday lawyers began public arguments over potential jurors for the trial, which is expected to attract national attention.

The trial also will be long -- an estimated four months -- and that helped turn away hundreds of potential jurors.

A total of 435 potential jurors answered a 91-item questionnaire in recent weeks and 268 of those potential jurors reported that the trial would be a hardship to them. All were excluded.

Both sides agreed to bring forward 122 jurors for individual questioning by lawyers, set to begin Thursday.

Each side also presented to Silverstein challenges for cause to about two dozen potential jurors.

The state objected to one potential juror who works as a state sheriff and another whose son works as a lawyer for the state. It opposed one woman who said the companies put lead in paint before they knew it was a bad thing to do.

It also opposed several jurors who said they were dissatisfied with state government.

Both sides joked that they didn't want to put an Internal Revenue Service agent on the jury.

The state also convinced Silverstein to exclude an elderly doctor who said he's been sued twice for malpractice and he believes the state's political situation is "abhorrent."

The defense sought to exclude several people who said they know people who are lead-poisoned, one high-level state employee, and one employee of the Providence Housing Authority whose boss is on the witness list.

The state argued against most of those objections.

"At least 35,000 children in Rhode Island have been lead poisoned," said John "Jack" McConnell, a lawyer for Motley Rice who is helping present the state's case. "You can't exclude every one in Rhode Island who knows one of these people."

Silverstein excluded 11 of the witnesses opposed by the companies and 7 opposed by the state.

Opening arguments for the trial are scheduled Oct. 27.