Rhode Island news
Opening arguments begin today in R.I.'s lead-paint lawsuit
The judge rules that a 1939 memo can be presented at trial. The state says the memo shows the paint companies knew at that time that lead paint was dangerous.
01:00 AM EST on Tuesday, November 1, 2005
PROVIDENCE -- When jurors hear opening arguments for the state's historic lead-paint trial today, they will face a video screen big enough to satisfy any television fanatic and squads of lawyers with tiny lavaliere microphones clipped to their ties so everyone can hear. Yesterday afternoon, Superior Court Judge Michael A. Silverstein approved final adjustments for microphones, a lectern and other furniture in his courtroom. Each side has hired audio-video experts who will flash graphs, pictures and various talking points onto the huge screen facing the box where six jurors and six alternates will sit. The state asserts that four paint companies created a public nuisance generations ago when they made and marketed lead pigments that have poisoned some 35,000 Rhode Island children. The companies insist the fault lies with landlords who don't maintain their houses. Yesterday, Silverstein issued a flurry of rulings in response to motions from each side aimed at excluding certain evidence or dismissing portions of the trial. On some of the motions, millions of dollars could rest. For instance, the state wants damages of about $35 million to repay itself for all the lead-abatement grants it has distributed over the years. It also wants untold damages to clean up tens of thousands of homes in Rhode Island that still have lead paint on them, and it wants punitive damages. The defendants argued that much of the grant money distributed by the state came from the federal government and the state has no right to repayment. They also alleged that because the state didn't respond completely to their discovery requests about the damages, nearly all the damage claims should be thrown out. Silverstein said the state insists it has handed over everything it has and he doesn't have time on the eve of the trial to determine who is right. But he said if it is determined during the trial that evidence was withheld, "appropriate action may be taken." Silverstein said he didn't have enough information to decide on the federal grants issue. But he would try to reach a decision before the expected damage portion of the trial is reached. One defendant, NL Industries, argued that the state should be made to prove that the paint companies conducted themselves improperly. But Silverstein disagreed. Rhode Island case law is clear, he said, on the point that the basis for a nuisance is unreasonable injuries to others, not unreasonable conduct. Silverstein also denied a state motion for summary judgment that would have declared victory for the state. One effort to exclude evidence backfired. Laura Ellsworth, a lawyer representing Sherwin Williams, argued for excluding a memo written in 1939 for the National Paint, Varnish and Lacquer Association that warned that companies that put out a dangerous substance without warnings to customers could be held liable for any damages that result. Ellsworth said the memo is "severely and profoundly prejudicial" and inappropriate because it amounts to saying what the law is, something only the judge should do. Jack McConnell, a lawyer representing the state, said the memo goes to the heart of the case. "Sherwin Williams, NL Industries and Millennium's predecessor, Glidden, were given notice in 1939 that lead was toxic and lead in paint was toxic," McConnell said. (The fourth defendant is Atlantic Richfield Co.) "But they didn't initiate a voluntary ban for another 15 years." The government banned the use of lead altogether in paint in the late 1970s. Neil F.X. Kelly, an assistant attorney general, suggested redacting several sentences and paragraphs from the memo that referred to legal principles. Silverstein agreed with Kelly. But Ellsworth objected. The redactions make the article worse, she said. Silverstein responded by dropping the redactions and allowing the entire memo to be presented.BY PETER B. LORD
Journal Environment Writer
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