The jurors describe the twists of deliberations in the historic public nuisance trial, which held three of the four companies liable.

01:00 AM EST on Sunday, March 12, 2006

BY PETER B. LORD
Journal Staff Writer

In the beginning, some of the jurors were skeptical about the state's historic public nuisance lawsuit against companies that sold lead-based paints in Rhode Island.

Jury foreman Gerald Lenau, 64, a passenger screener for Homeland Security at T.F. Green Airport, had doubts about suing companies for actions taken years ago. "I'm not one for holding sons responsible for the sins of their fathers."

Kevin Destefanis, 37, a mail room clerk for Brooks Pharmacy, said he knew that bad landlords were a big part of the problem and thought parents were responsible for letting their children get lead poisoned.

Richard R. Reynolds, who works for the gas company, argued until nearly the end of deliberations that maintenance was the key to eliminating dangers caused by lead paint, according to his fellow jurors.

But in the course of what court officials believe was the longest civil trial in state history, the jurors drew together, listened to each other and methodically reviewed evidence, even overcoming two temporary deadlocks before finding three of four corporations liable.

During the last two decades, local governments across the country have filed dozens of lawsuits against paint companies, seeking compensation for what they spent to clean up toxic lead paints and to treat poisoned children. The Rhode Island jury was the first to hold any companies responsible.

The jury found that Sherwin Williams, NL Industries and Millennium Holdings created a public nuisance and should be required to pay to clean up lead paint on an estimated 240,000 houses here. The cost could be $1 billion or more. The jury concluded there was insufficient evidence to hold a fourth defendant, Atlantic Richfield, liable.

"I've taken part in a lot of trials, and I can tell you this was a remarkably responsible jury," said Jack McConnell, a private lawyer who helped present the state's case. "They all showed up, day after day, on time, and they really paid attention."

Jury duty was a special challenge for some of the six. Mary T. McGowan, 69, of North Providence, has arthritis and suffered through a bout of pneumonia during the trial. It wasn't easy for her to climb the two steep staircases to the small room where the jury had to sit and to wait time and again while the lawyers argued legal issues in Court Room 11.

But she never considered quitting.

"I wasn't going to give up after all that time and effort," she said. "I was doing my civic duty. But this trial was a doozy!"

Sheryl Costa, a supervisor at Shaw's Markets, got married just days before the opening arguments.

Even so, each of the jurors interviewed last week said they were proud of their verdict.

And despite the constant jokes from others about a lead-paint trial being as boring as watching paint dry, they insisted the trial for the most part was interesting -- a high-powered education.

Juror Robert Merwin, who works with East Bay Newspapers, declined to talk about the trial. And Richard Reynolds did not return calls. But the other jurors said the trial was a positive experience that left them feeling good about what they did.

Each juror bucked long odds to be chosen to serve.

A pool of 435 jurors was initially screened and asked to respond to 91 questions probing their attitudes about state government, corporations and lawsuits.

The 268 people who said a four-month trial would be a hardship were immediately dismissed.

Last October, court clerk Jean E. Maggiacomo spun a wooden drum three times and began drawing numbers.

"I can't get a Powerball number, but I get picked for this," Destefanis joked last week.

Lawyers on both sides liked Merwin, the newspaper employee with a young family. But he told the judge his boss was willing to pay his salary for only 30 days, and he wouldn't be able to afford to pay his mortgage if the trial went longer.

Judge Michael A. Silverstein went to his chambers and called Merwin's boss.

When the judge returned, he told Merwin his boss "deems you to be a highly thought of employee" and had agreed to pay him for the duration of the trial. "We'll see you on Monday," the judge said.

Foreman Lenau had been called to jury duty before, but his previous employers hadn't been willing to pay him while he served. Now that he works for the federal government, he collected his pay and got to keep the $15 a day the state pays for jury service. He said he was eager to serve.

(State law requires employers to protect the jobs of those called to jury duty, but it does not require them to pay employees while serving, according to Craig Berke, court spokesman.)

BY THE LAST week of October, Silverstein empaneled six jurors and six alternates. One alternate, whom the jurors knew simply as "Mario," was to keep the group entertained for months with jokes and stories about politics on Federal Hill.

By the time the trial started on Nov. 1, the jurors said it was very clear they were in the middle of something very big and important.

Dozens of lawyers crowded the courtroom. The jury faced a video screen the size of a garage door. And Judge Silverstein, mixing his very formal, even old-fashioned language -- "I tell you now . . ." -- with occasional wit about the Patriots, kept stressing the rules and responsibilities of the jury.

From the start of the trial to the end, on Feb. 22, he told the jurors every day not to read or listen to stories about the trial. He told them not to talk to anyone, or each other, about it. He told them not to do Google searches for lead poisoning.

Lenau said his wife saved the newspapers for him to read now that it's over. McGowan said she turned the page when she saw newspaper headlines about the trial. She muted the television during reports about the trial.

Lawyers on both sides poured great energy into making dramatic, even emotional opening and closing arguments.

But the jurors said they carefully followed the judge's instructions to focus only on the evidence.

The state presented 12 witnesses, but the jurors said they got the most from just 3:

Dr. Philip J. Landrigan, a professor at Mount Sinai School of Medicine, was the first witness. He explained how young children are damaged when they ingest tiny particles of lead paints. "It's sort of a perfect storm: little children crawling on floors, taking the chips into their bodies, with organs more susceptible."

Former State Health Director Patricia Nolan testified about the state's efforts to treat lead-poisoned children and the need to reduce lead-paint hazards.

Dr. Michael Shannon, the state's closing witness, testified that he has treated about 5,000 lead-poisoned children and the poisoning was almost always due to lead-based paints. Shannon was authoritative, precise and sometimes angry, "regal" in bearing, according to McGowan.

The defense rested without presenting a single witness. Company lawyers said the state hadn't proved its case. Jurors said they were surprised by that.

It wasn't until the afternoon of Monday, Feb. 13, that the trial was finally over and Silverstein sent the jury up to the jury room -- one of two rooms reachable only by the single set of stairs.

JURY ROOM 11 is a place for work. It has two windows with views of Waterman Street. That's it. Nothing on the walls. Just two tables, 14 wooden chairs, a water cooler, an easel and a bag of junk novels.

Lenau said he probably gained 5 pounds in that room, eating cheese and crackers brought by McGowan.

Silverstein allowed the jurors to take notes. For the first two days of deliberation, they reviewed their notes and talked over the evidence.

On Thursday, they took a straw vote on the first of three questions posed by the judge: Had lead paint created a public nuisance in Rhode Island?

The vote was four for the paint companies and two for the state, cast by Merwin and McGowan.

When the jury informed the judge, Costa was crying. It was a tense time.

But the judge asked the jury to consider returning for further deliberations.

With more discussions and review of the judge's orders, the votes began switching toward the state.

Destefanis said he was the last to come around. Costa diagrammed the public nuisance argument on a big pad on the easel.

"She had to virtually connect the dots for me, because I didn't understand it," he said. The judge said a public nuisance is a harm people ought not to have to bear, and Destefanis said Costa convinced him that Rhode Island's children were bearing that harm.

Several days later, the jury deadlocked on Question 2: Are the four defendants responsible for creating the public nuisance?

"Some of us thought a big part of the problem was poor maintenance," said Lenau.

"Most of us wanted to blame the landlords," said Destefanis.

But one by one, the opponents agreed that regardless of what the landlords did, the harm began with the companies distributing toxic paints. (They found for one defendant, Arco, because it made lead pigments for only a short time.)

After reaching that decision, the jury quickly decided for Question 3: Should the three companies clean up the paints?

Lenau said he was nervous when the verdict was announced to a courtroom packed with lawyers, child-health advocates and financial analysts.

But a week later, he and other jurors said they were comfortable with their verdict.

FINANCIAL columnists, bloggers and others have complained that the verdict was unfair and threatens the futures of the three companies.

McGowan has been reading those opinions and said she is unimpressed.

"The paint on the walls in Rhode Island didn't magically appear," McGowan said. "If they didn't do it, who did?"

And the evidence showed, she said, that as far back as the 1920s and '30s, "everybody realized there was something wrong with the paints."

The defendants, McGowan said, will deal with the abatement costs. "They have contingency plans."

"I feel very comfortable with my decision," said Lenau. "I can live with it day and night."

Judge Silverstein gave each juror a diploma saying they had taken part in the longest civil trial in court history. And he offered to take them out to dinner.

"I'm going to hold him to it," said Lenau. "I want to go to the Capital Grille."

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