Citing R.I. Report, Lead Paint Defendants Seek Retrial

By | August 23, 2006

Former lead paint manufacturers found liable for creating a public nuisance in Rhode Island say lawyers for the state misrepresented to jurors the extent of the state’s childhood lead poisoning problem and are pushing for a new trial.

In February, a jury found Sherwin-Williams Co., Millennium Holdings LLC and NL Industries Inc. liable in a verdict the state says could cost the companies billions of dollars in cleanup costs.

However, the companies now cite a 2006 report from the state Department of Health which says the proportion of new cases of childhood lead poisoning fell below 5 percent in each of Rhode Island’s 39 cities and towns in the 2005 calendar year. The state has said meeting that standard is part of its overall goal of eliminating lead poisoning in Rhode Island.

The defendants say the report reflects continuing success in reducing lead poisoning incidence rates, undercutting the state’s public nuisance arguments.

The three defendants first asked Superior Court Judge Michael Silverstein in April to dismiss the case or hold a new trial. Those requests are still pending, and the defendants more recently filed supplemental memos that raise the arguments about the health department data.

In a memo filed earlier this month, Millennium said the data in the report, if provided to jurors, would have affected the outcome of the trial. The memo says the state contended at trial that its efforts in reducing childhood lead poisoning had reached a “plateau,” but it says the health department report contradicts that argument.

The memo also claims the year-end incidence rates were known to the health department before the end of the trial but were not provided to the defendants.

“Simply stated, the 2006 Report proves that the jury returned its verdict based upon a grossly inaccurate picture of the-then prevailing status of childhood lead poisoning prevention in Rhode Island,” the memo stated.

Jack McConnell, a lawyer for the state, said the argument was “meaningless” and wrong.

“It’s a classic move by the defendants to try and take people’s attention from the real issues by attempting to throw mud when there’s just no issue,” McConnell said.

He said the state’s public nuisance case was always about more than numbers. And he said the companies knew what the year-end statistical decline would look like since their own witness was able to successfully forecast it during a November 2005 deposition.

The state also says all the numbers it gave the jury during the trial were accurate.

The Health Department report shows that the number of newly poisoned children in 2005 was 621, down from 1,167 the year before.

“Six hundred and twenty-one vulnerable citizens, children, who are poisoned by a toxic substance that companies sold when they knew it would harm kids is a public nuisance under anyone’s scenario, regardless of (whether) it’s on an incline or a decline,” McConnell said. “And the defendants can’t get around that.”

Silverstein is scheduled to hear arguments on the defense motions on Aug. 30.

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