Environment

Judge refuses to overthrow lead-paint convictions

01:00 AM EST on Tuesday, February 27, 2007

By Peter B. Lord

Journal Environment Writer

In a dramatic setback for three corporations convicted of creating a public nuisance by selling lead-based paints generations ago in Rhode Island, Superior Court Judge Michael A. Silverstein yesterday rejected every plea and motion from the companies to retry or throw out the case.

Instead, Silverstein said he would soon appoint a special master to oversee the removal of lead paint from houses in Rhode Island — a job the state has estimated could cost $1.37 billion to $3.74 billion.

The paint companies will appeal Silverstein’s ruling to the state Supreme Court. “We believe there have been a number of basic legal errors throughout these proceedings. These errors were not corrected in today’s ruling,” said spokeswoman Bonnie J. Campbell, adding that she hopes the Supreme Court will review the issues with a fresh set of eyes.

But the ruling, released at noon, was a joyous development for child advocates and lawyers who have supported the lawsuit.

“I think it is a huge win. It couldn’t have been a better ruling,” said Roberta Aaronson, executive director of one advocacy group, the Childhood Lead Action Project. “It is very good news for all those families struggling with lead paint.”

Providence Mayor David N. Cicilline said the ruling “helps to right a gross injustice. Attorney General Patrick C. Lynch called it a “validation of our long fight to protect the public health.”

Jack McConnell, a lawyer with Motley Rice, the national firm that helped try the state’s case, said it was very satisfying to see the judge stand by the way the state presented its case. “It’s a 100 percent victory.”

Within minutes of the judge’s ruling, Sherwin Williams stock plunged nearly $4 a share on heavy trading. But the stock rebounded later in the day.

Basically, the judge was being asked to revisit dozens of legal rulings he made during the course of the trial last winter, so the paint companies faced a stiff challenge. But they filed dozens of motions, and it surprised some that they did not prevail on any of them.

For the time being, the ruling keeps alive the precedent set in Rhode Island, which is the only locale to successfully try a suit against the paint companies to recoup some of the millions of dollars being spent around the country to clean up lead paint and treat the children it poisons. The state alleged more than 37,363 children in Rhode Island had elevated lead levels since 1993 and that lead causes wide ranging neurological damage.

When the state first brought its lawsuit against a long list of paint companies in 1999, 20 percent of all children entering kindergarten in Rhode Island had elevated lead levels. Last year, after two trials and one mistrial, the rate dropped to 8.4 percent.

The decision comes a year and three days after the jury’s historic verdict against three companies — Sherwin Williams, Millenium Holdings, and NL Industries. The jury did not find against ARCO, apparently because it produced lead paints for a shorter period and there was less evidence of its activities. A fifth defendant, DuPont, settled with the state for $12 million.

The Rhode Island verdict quickly prompted a series of similar suits by communities in Ohio hoping to recoup the money they’ve spent cleaning up houses painted with lead paints. Motley Rice —the private firm that helped try Rhode Island’s case — was retained to press several of those suits.

Lawyers for the three companies devoted two days to oral arguments last September and hundreds of pages of briefs seeking to have Judge Silverstein overturn the jury’s verdict or to at least retry the case.

The companies argued repeatedly that the lawyers for the state and for Motley Rice failed to show that their products were sold in Rhode Island. But Silverstein wrote that he had already rejected those arguments during the trial. The state only had to show that each defendant, “engaged in activities which were a substantial factor” in creating the public nuisance, he wrote.

Silverstein also noted that historian David Rosner testified during the trial that all three defendants sold and promoted their lead paints in Rhode Island. What’s more, Rosner’s conclusions were supported by national advertisements and promotional campaigns that were entered as evidence, the judge wrote.

“The defendants had an adequate opportunity through cross-examination to discredit Dr. Rosner’s testimony on substantiality and the sale of goods in Rhode Island, but they failed to convince the jury,” Silverstein wrote.

Silverstein also rejected the companies’ argument that it is property owners who are at fault for creating any public nuisance because they failed to maintain the paint on their buildings. The enactment of laws committing property owners to maintain their properties, Silverstein wrote, were not intended to “authorize the presence of lead paint or otherwise insulate actors such as the paint companies from public nuisance liability.”

The paint companies also argued that intact lead paint does not pose a public nuisance. But Silverstein said there was considerable evidence to the contrary. “While it may be true that some paint which contains lead pigment has lasted 300 or 400 years, the jury was entitled to conclude that even intact paint is likely to cause harm,” Silverstein wrote.

The companies reargued earlier attempts to have Silverstein declare a mistrial because of comments made by state lawyers during the trial. Sherwin Williams said it wasn’t right to say it hadn’t taken any actions to clean up lead, because it had participated in settlement talks. But Silverstein said no settlement was reached, so it was still reasonable for the state to demand that the paint company pay its “fair share” for creating the lead problem.

The defendants argued that the state exceeded the bounds of proper closing arguments with this comment: “The entire defense in this case, Ladies and Gentlemen, you know what it’s like, what it reminded me of, it’s like the arsonist who starts a fire. And then they blame the fire department for not getting there quick enough or not doing enough to put out the fire. Or worse, the arsonist blaming the homeowners for not having a smoke detector. That’s what their defense is. None of these actions, none of them, even if true, relieve the arsonist of responsibility for starting the fire. The arsonist started the fire just like these defendants started the public health tragedy and set it in motion by selling and promoting poisonous lead when they knew better in the first place.”

The defendants objected to using the fire analogy at a time when The Station fire tragedy was still in the news. But Silverstein said the analogy appeared to be calculated to discredit the defendants’ argument that others were responsible for the cumulative presence of lead in Rhode Island and as such, “it is within the bounds of proper argument.”

The defendants argued for the state to pay for abatement costs, and then sue the companies for compensation.

Silverstein disagreed with that motion too: “This court does not find it ‘adequate’ after over six years of litigation for the non-liable party to have to take primary responsibility for abating the nuisance, for which other parties have been found liable, and then be required to engage in more litigation to recover its costs.”

U.S. Sen. Sheldon Whitehouse, who filed the initial lawsuit seven years ago when he was attorney general, was touring New Orleans yesterday to review hurricane impacts when he said his Blackberry lit up with congratulatory e-mails from lawyers and advocates.

“The most important thing about today is it’s the turning point from litigation to beginning to do active remediation,” Whitehouse said.

“Lawyers fighting for seven years wasn’t the goal. Now we’re working on the goal.”

plord@projo.com

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