Closing arguments in the public nuisance lawsuit are under way. The case could go to the jury tomorrow.

01:00 AM EST on Thursday, February 9, 2006

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- One after another, lawyers defending lead-pigment manufacturers against the state's public nuisance lawsuit stuck to one central theme in closing arguments to the jury yesterday: the state did not prove its case.

"The defendants believe there is no case here," said John Tarantino for Atlantic Richfield. "It is time to end this matter."

"The state needs to be told no," said Donald Scott for NL Industries. "Their allegation of a statewide public nuisance is unsupported and unsupportable."

Michael Nilan, representing Millennium Holdings LLC, a successor to a former Glidden Paint Co., was just as emphatic: "After 12 weeks of trial, you have learned absolutely nothing about Glidden."

Today, lawyers for Sherwin Williams are scheduled to make their closing argument. Then three lawyers for the state will offer their closings. Superior Court Judge Michael A. Silverstein hopes to send the case to the jury tomorrow.

The state wants the jury to find that the companies created a public nuisance two generations ago by making and promoting lead pigments that remain in paints that continue to poison children today. The state contends that some 250,000 houses in Rhode Island have lead paint on them and it wants the companies to pay to inspect every one of those houses and to remove the lead paints.

The defense lawyers, who have worked together closely since the case began in 1999, presented withering criticisms of the state's witnesses and evidence. Both, they said, told only part of the story and were misleading.

Rhode Island, once considered the lead-poisoning capital of the nation, is now part of a public health success story, according to the defense lawyers.

Average lead levels are now at their lowest point in decades, the lawyers argued. Meanwhile, they said the problem with poisoned children rests with a few hundred bad landlords.

Tarantino said one of the state's own witnesses acknowledged that national average blood-lead levels in children have declined, from 17 micrograms/deciliter two decades ago to just 2 mg/dl now, and the level of 2 is comparable to results researchers recently found in a remote Tibetan village where there were no lead paints or any other modern sources of pollution.

The number of poisonings in Rhode Island has steadily declined, he said.

"What's being done in Rhode Island works," Tarantino said. "And it's being done without massive numbers of inspections or abatements."

Tarantino said several of the state's witnesses testified in favor of removing all lead sources from homes, and then on cross-examination conceded that they lived in homes treated with lead paints and suffered no problems.

"The state's handpicked, 'do-as-I-say, not-as-I-do' experts gave a lot of opinions," Tarantino said. "But the facts are consistent with the defense position. Let's focus on where the real problem is. It's on the poorly maintained properties. Focus on bad landlords. Don't lump all properties together. Don't lump all property owners together.

"The state's argument is an attempt to hold a weak case together. It will collapse under its own exaggerations."

Scott argued there is no crisis in Rhode Island. Rather, when it comes to lead poisonings, it's a success story. Ninety-nine percent of the children tested have lead levels below 15.

Meanwhile, during the first half of the last century, when much of the lead paints were used, the federal government routinely recommended or required its use on federal buildings, Scott said.

Peter Bleakley, representing Atlantic Richfield, which assumed a company that made lead pigments before and during World War II, said there was no proof that any of that lead went into paints that were applied to houses in Rhode Island.

"You can't speculate," Bleakley said to the jury. "That ain't fair. The state has the burden of providing these things, and they didn't even try."

Nilan said records from the state Health Department clearly show the lead-poisoning problem is confined to a few hundred poorly maintained houses.

And records show that in 2003, the department referred 20 landlords to the attorney general for prosecution, but only six cases were closed, Nilan said.

One problem, he argued, is that the attorney general's office only devotes one-third of a lawyer's time to enforcement actions, "while expending enormous resources on a novel and fundamentally flawed lawsuit against these companies."

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