Lawyers for four paint companies find a question from a state lawyer highly prejudicial and ask for a mistrial.

01:00 AM EST on Wednesday, November 16, 2005

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- Lawyers representing four paint companies being sued by Rhode Island dramatically objected yesterday morning to a question posed by a state lawyer, and demanded that Judge Michael A. Silverstein declare a mistrial.

Silverstein gave both sides the rest of the day to file briefs. At the end of the day, he had not made a ruling.

The question that angered the defendants seemed simple and went to the heart of the state's case.

Assistant Attorney General Neil F.X. Kelly asked former state Health Director Patricia Nolan whether any of the defendants, Sherwin Williams, Atlantic Richfield, NL Industries or Millennium Holdings LLC, "contributed any funding or other support to any state programs in the state of Rhode Island to address the lead-poisoning problem?"

The state alleges that the four companies created a public nuisance by manufacturing paints two generations ago that continue to poison thousands of Rhode Island children.

The moment Kelly completed the question attorneys for all four companies rose to their feet so vehemently that Silverstein sent the jury away before they made their arguments.

"This is beyond the pale," said John Tarantino for Atlantic Richfield. "This is a 'when do you stop beating your wife' question, because it assumes there is some obligation to do that [make contributions to the state]. Which there are none under the law."

Donald Scott for NL Industries said the question was asked merely to prompt objections. And Michael Nilan for Millennium said it was "not a good faith question."

"This is a bell that can't be unrung," added Paul Michael Pohl for Sherwin Williams. "This is so far over the line, we'd like to research and present additional materials."

Jack McConnell, a lawyer pleading the state's case, said the defendants' objections were "mind-boggling."

"We are here today because these defendants have not abated the public nuisance the state alleges they caused," McConnell said. "We are here today because these defendants have not contributed. This case is about their failure to mitigate, to abate. If they had taken steps to remove their toxic products from our state, that would go to the very essence of the public nuisance claims the state brings."

"It's a perfectly appropriate question that goes to the heart of their contribution to the public nuisance," McConnell said. "It is uncomfortable for the defendants. It is damaging. But it goes to the heart of this case."

Silverstein said that he thought the issue was serious. He discharged the jury for the rest of the day. He directed the lawyers to submit briefs by 3 p.m. and to return to court at 4 for more arguments. But at 4, the judge's clerk told them all to come back at 9 a.m. today.

The state's first lawsuit against the paint companies ended in a mistrial, but that came after the trial was complete and the jury voted 4-2 to acquit.

Ironically, yesterday's demands for a mistrial followed two hours of testimony by Nolan that were significant because of the relatively few objections raised by the defendants.

In the mid-1990s, Nolan, a physician, said, the state's response to lead poisonings was to treat the victims and try to clean up the homes where they were exposed to the toxic paints.

It eventually became clear, Nolan said, that such an approach would never end the poisonings. The state needed incentives to pursuade more property owners to clean up their properties and make them safe from lead paints.

The new incentives, she said, came with passage of the Lead Hazard Mitigation Act and new state regulations for landlords that went into effect at the start of this month, she said.

"We've made tremendous strides, but we still have children being poisoned," Nolan said. "Because we still have lead-paint hazards and potential hazards in homes where children live, we need constant vigilance to keep children from being exposed."

During a break, Silverstein issued a ruling that rejected the defendants' efforts to severely limit testimony expected from Providence Mayor David N. Cicilline and to block the state from introducing a planning document that in part outlined the city's program to reduce lead poisonings.

"The court will permit the chief executive officer of the city to testify with respect to his perceptions as predicated by the plan," Silverstein said.