Lawyers for Atlantic Richfield and NL Industries argue for the lawsuit's dismissal; Millennium Holdings and Sherwin Williams' attorneys will present the same argument today.

01:00 AM EST on Friday, January 27, 2006

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- As everyone expected, the state rested yesterday morning in its three-month-long trial of four companies that once made lead-paint pigments. As almost no one expected, all four companies immediately rested their defense without putting on a single witness.

As recently as Wednesday, paint company lawyers were telling the state they planned to present four witnesses.

But after some intense conferences yesterday morning, the paint company lawyers agreed to not put on a defense.

Only one company offered an explanation.

"It is unnecessary to prolong this already lengthy and complex trial with additional witnesses and documents merely to confirm points already well established by the defendants during the state's case," said Suesan Lea Pace, counsel for Millennium Holdings LLC.

Pace released a statement that said that as the state presented its case, the defendants cross-examined each witness and presented 150 exhibits in support of their defense. She said the testimony and exhibits already presented are sufficient for the jury to reach "a just and fair verdict."

Lawyers for two other defendants, Atlantic Richfield and NL Industries, argued before Judge Michael A. Silverstein after the jury was sent home yesterday afternoon to have the state's precedent-setting case dismissed.

ARCO lawyer John Tarantino and NL lawyer Donald Scott both argued that the state failed to present any evidence that their companies marketed and sold lead-based paints in Rhode Island.

Pointing to the one piece of physical evidence he said was presented against his company, Scott said, "That's not a scintilla. That's zilch."

Tarantino said that in early legal arguments, the state said it would prevent a long list of evidence connecting an ARCO subsidiary with the sale of lead paint in Rhode Island.

But in each case, Tarantino said, the evidence was "not offered, not introduced."

Tarantino pointed to a key ruling by Silverstein two weeks ago that barred two state witnesses from testifying about how much money the state has spent cleaning up lead paints, regulating painters and treating lead-poisoning victims.

Silverstein agreed with a defense company motion to block the testimony because the witnesses could not differentiate between lead poisonings caused by paint and those caused by other sources.

Tarantino insisted that the state's inability to present that evidence amounted to "a glaring missing element" in its case.

Scott said the state presented copies of advertisements and statements that he said were aimed solely at making his client look bad.

"But we don't have any evidence about a single molecule of our paint in this trial," Scott said.

This morning, lawyers for Millennium Holdings LLC and Sherwin Williams are scheduled to present their own arguments to have the lawsuit dismissed. Then the state will be permitted to respond.

Because the lack of a defense was such a surprise, Silverstein also offered to let the state make its responses to the dismissal arguments on Monday, if it needed more time.

Judge Silverstein told the jury he hoped to bring it back for deliberations on Feb. 6.

Next week Silverstein and lawyers for both sides will negotiate what charge Silverstein will give to the jurors, if he sends the case to the jury.

Plans call for the jury to judge whether the defendants created a public nuisance, whether they should be held liable, and whether they should be required to abate the nuisance. With lead paint estimated to be on 250,000 housing units in Rhode Island, the attorney general's office estimate abatement costs could total billions of dollars, should the state prevail.

plord@projo.com / (401) 277-8036