The paint companies already face a total bill of several billion dollars to clean up lead-paint contamination around the state.

01:52 PM EST on Tuesday, February 28, 2006

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- Lawyers for three corporations found liable last week for creating a public nuisance by selling lead-based paints in Rhode Island argued yesterday that they should not also be forced to pay punitive damages.

Even without the punitive damages, the defendants could be facing a total bill of several billion dollars to clean up, or abate, the lead-based paints found on an estimated 240,000 houses in Rhode Island.

Judge Michael A. Silverstein is expected to rule later on details of an abatement program.

Today, he must decide whether to send the question of punitive damages to the same jury that found the companies liable for creating a public nuisance.

Silverstein is asking the jury to return at 2 p.m. today. This morning, he will allow the defense to complete its arguments against punitive damages. Then, he will hear from three state lawyers who insist punitive damages are appropriate.

Donald Scott, representing NL Industries, argued that one Rhode Island Supreme Court decision, Palmisano v. Toth, sets a very high standard for imposing punitive damages in the state.

A jury would have to find willful, reckless and wicked actions that "amount to criminality," Scott said, quoting from the Supreme Court case. He said the state presented no evidence about his client's intentions, when it was selling lead-based paints.

The paints were sold legally, he said. Government agencies were demanding use of lead-based paints on government projects.

"It's clear in this record that there was broad-based support for the use of lead-based paints, through the 1970s," Scott said.

Scott also argued that punitive damages should be imposed for reasons of punishment and deterrence, beyond the costs of compensatory damages. But in this case, there are no compensatory damages, he said, and no one knows how much the abatement will cost, so the jury wouldn't have the necessary information to make a decision.

Silverstein wondered if he could solve that problem by setting the price-tag on abatement first.

But Scott disagreed.

"The media is flooded," he said. "You'd be asking the jury to not talk about something that has dominated their lives for four months."

Scott said the state has been working on its case for six years, and it made the decision to seek a liability judgment "before doing the groundwork for abatement."

Michael Nilan, a lawyer for Millennium Holdings (a successor to the Glidden paint company), argued that punitive damages shouldn't be assessed because the state never entered evidence about Glidden's conduct, or its proportion of the Rhode Island market, or evidence that it had been warned to stop selling lead-based paints.

Paul Michael Pohl, for Sherwin Williams, said the law is clear: for punitive damages to be awarded, it has to be shown that a party acted with clear intent to cause harm.

Silverstein's response: "What if the actual intent here was to maximize profits and totally disregard whatever the ultimate effect might be? Is that intent?"

No, said Pohl. Rhode Island has set the bar higher than any other state. "You need specific intent to cause harm."

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