It’s been a year since Rhode Island won a precedent-setting court victory against three former lead paint manufacturers, but the case has been in legal limbo since then as the companies have challenged the verdict and demanded a new trial.
Both sides are awaiting a judge’s order, expected soon, that could specify what the defendants need to do to deal with lead paint contamination. The decision will be significant since lawyers and financial analysts estimate that it could cost billions to clean up the toxic problem.
Superior Court Judge Michael Silverstein has wide discretion, and his options could range from ordering the companies to pay for inspections of some 250,000 older homes to painting over, covering up or removing lead paint in those properties. Before issuing any cleanup order, though, he’ll have to rule on the companies’ requests for a new trial or to dismiss the case.
Those involved in the case say it’s anyone’s guess what the judge will do.
Jack McConnell, an attorney representing the state, said he hoped Silverstein would affirm the verdict and issue a decision “that gets the lead out of Rhode Island as quickly and safely as possible.”
Whatever the decision, it would be the biggest development in the case since last February when a jury found three companies _ Sherwin-Williams Co., Millennium Holdings LLC and NL Industries, Inc. _ liable for creating a public nuisance by manufacturing a toxic product.
The verdict made Rhode Island the first state to successfully sue former lead paint makers.
“It’s sent shockwaves through the lead paint companies that they may in fact finally be held financially responsible for their bad acts,” McConnell said.
Lead paint was banned in the United States in 1978, but the state says it has sickened tens of thousands of children. Studies show children who ingest flaking paint chips or dust can suffer learning disabilities, brain damage or even death.
In Rhode Island, with its large number of pre-1978 homes, the state says it could cost between $1.37 billion and $3.74 billion to remove lead paint or mitigate the problem. It has asked Silverstein to appoint a public health expert to help fashion a cleanup plan.
But the companies have raised numerous arguments in asking for a new trial, including that the state’s declining rate of childhood lead poisoning undercuts its claim that lead paint is a continuing public nuisance. It’s possible Silverstein could rule just on the companies’ motions and delay any decision on how the companies must clean up the mess.
Bonnie Campbell, a spokeswoman for the companies and a former Iowa attorney general, said in a statement that there are still several key issues that need to be addressed.
“There was no evidence presented at trial that these companies in any way contributed to a public nuisance in Rhode Island,” Campbell said.
If the judge upholds the verdict, the companies are likely to appeal.
Meanwhile, former lead paint and pigment manufacturers continue to face government lawsuits around the country _ though Rhode Island remains the only state that’s sued.
Several cities in Ohio, for instance, are suing the companies. The Missouri Supreme Court recently agreed to consider whether paint manufacturers can be held accountable for costs to remove lead paint from St. Louis homes — even if the city can’t prove who made the paint.
The paint companies have had notable successes, such as in Illinois, where an appeals court in 2005 upheld a lower court’s decision to dismiss a public nuisance lawsuit filed by the city of Chicago. Last year, though, a California appeals court reinstated a class-action suit brought on behalf of cities, counties and school districts in that state.
Howard Erichson, a law professor at Seton Hall University, said it’s often trickier to sue over a problem created years ago since it can be harder to find the right defendant and come up with damaging evidence.
Michael Green, a law professor at Wake Forest University, said similar lawsuits may be more attractive in New England states, where the housing stock is older and paint more likely to contain lead, than in other parts of the country.
“If there’s another successful suit, that may put more pressure on an attorney general to pursue this _ people ask why aren’t you doing this,” Green said.
Roberta Hazen Aaronson, executive director of the Childhood Lead Action Project, a nonprofit advocacy group that works to eliminate lead poisoning, said it’s been unsettling after a year to still not know what the state will ultimately receive from the lawsuit.
“The devil is, of course, in the details,” she said. “And the details need to be fleshed out once we hear from the judge.”
On the Net:
Childhood Lead Action Project: http://www.leadsafekids.org
Sherwin-Williams Co: http://www.sherwin-williams.com
NL Industries, Inc. http://www.kronostio2.com
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