The office of Rhode Island Attorney General Sheldon Whitehouse is asking a six-member jury to find that old lead-based paint constitutes a public nuisance. If the jury comes to that conclusion, a subsequent phase of the case will determine whether the companies must pay damages. State officials have not said how much they would seek. The trial got under way in mid-September and is expected to continue for up to nine weeks.
The stakes are high: if the state convinces the jury of its case, Whitehouse could seek financial penalties designed to alleviate suspected lead hazards said to exist in an estimated 330,000 homes in Rhode Island, where lead poisoning is called the number-one environmental health problem facing children. The potential cost would run into billions of dollars, industry sources say.
The rate of elevated blood-lead levels in Rhode Island children is reported to be twice the national average. The situation is attributed to the widespread existence of older housing, poor maintenance of many older urban buildings, and complaints that officials have failed to adequately enforce maintenance codes.
The suit - the first filed by any state - is being watched closely around the nation, where the number of lead-paint lawsuits filed by cities and counties has been escalating.
The companies named in the lawsuit are American Cyanamid Co., Atlantic Richfield Co., ConAgra Grocery Products Co., Cytec Industries Inc., DuPont Co., Millennium Inorganic Chemicals, NL Industries Inc., and The Sherwin-Williams Co.
According to news reports, the state's lead attorney, Leonard Decof, began the trial by alleging that the defendant companies created a public-health threat. In his opening remarks to the jury, however, an attorney representing the companies said proper building maintenance and stronger enforcement of building codes would prevent exposure to such hazards.
"The problem is not the presence of lead paint," said John Tarantino, the lead attorney for the eight companies named as defendants. "It's poorly maintained properties, bad maintenance."
Dr. Philip J. Landrigan, testifying for the state, said the nation is suffering from an "epidemic of lead-poisoned children," and said old lead-based paint remains a health hazard even if it is covered with newer coats of paint. He said the only sure way to protect children from the hazard is to remove the lead paint.
According to news-media accounts of the proceedings, another witness for the state - Boston pediatrician Dr. Michael Shannon - testified that he knows of no level of lead exposure that would be considered safe for children. Shannon is a professor of pediatrics at Harvard Medical School, and is on the staff of Children's Hospital in Boston. Other medical experts testifying for the state included Dr. James D. Sargent of Dartmouth Medical School and Dr. Bruce P. Lanphear of Children's Medical Center in Cincinnati.
Donald Scott, one of the attorneys representing the defendant companies, has said the state of Rhode Island itself should accept some responsibility for the hazard posed by old lead-based paint. "Rhode Island has a good lead-paint law, but practically all the landlords are in violation of the existing law and they know it's not enforced," Scott said in an article in the National Law Journal.
Industry attorneys also point out that paint companies discontinued the manufacture of lead-containing interior house paint long before federal law prohibited the application of such paint in the 1970s.
The industry, led by the National Paint & Coatings Association, also has sponsored extensive educational programs designed to prevent exposure to lead.
In mounting its case, the Rhode Island attorney general's office recruited Decof, a noted Rhode Island personal-injury attorney, and Jack McConnell, a partner in the Rhode Island office of Ness Motley, the law firm that won a $240 billion settlement in a case brought against the tobacco industry.
The defense team includes Scott; Tarantino, a highly regarded Providence attorney; and Laura Ellsworth, a partner in the powerhouse Jones Day law firm, which represents many Fortune 500 companies. Ellsworth is considered an authority on the use of expert witnesses and on trial tactics.
Scott, a graduate of Harvard and Yale Law School, has successfully defended a paint company in a lawsuit filed by the prominent Baltimore attorney Peter Angelos, according to news reports.
Updates on the trial are reported in INSIDER NEWS, the weekly e-mail newsletter produced by PCI and the National Paint & Coatings Association. The newsletter is available on the PCI website at www.pcimag.com.
