Wis. Jury Rules Lead Paint Industry Not Cause of Boy’s Mental Retardation

November 7, 2007

A Milwaukee County Circuit Court jury has ruled that lead paint industry products were not the cause of a young man’s mental retardation.

It found Monday that Steven Thomas, now 17, had ingested white lead carbonate, a substance contained in some paint used in two north side Milwaukee homes where he lived. But it said Thomas was not brain-damaged because of the paint and that the medical process that removed lead from his system did not cause him harm.

“I know the kid has a disability,” jury foreman Gordon Behling Jr. said after the trial. “But I just wasn’t swayed to believe that white lead carbonate caused his problems.”

Behling said many of his fellow jurors were unswayed by the many expert witnesses each side called, largely because they were paid by one side or the other.

They wanted definitive science on issues raised, whether lead paint causes brain damage and whether it is reversible, but got conflicting testimony from witnesses, he said.

Damages of $2.2 million had been sought on behalf of Thomas in the case.

Peter Earle, one of the lawyers who brought the lawsuit against the industry, vowed to appeal the verdict and said he and his team will proceed to trial with the more than 30 other local cases that have been filed.

Thomas received about $156,000 from other defendants who settled before the case went to trial.

Scott Smith, speaking for the more than a dozen lawyers representing the defendants in the case, said they were gratified by the verdict.

While several similar cases are pending elsewhere in the nation, many are in Wisconsin, largely because of a 2005 Wisconsin Supreme Court decision that resulted from a pretrial motion in the Thomas case.

That court found that plaintiffs did not have to prove that lead paint manufacturers had made the paint or the lead additive that caused the damage, but only that they could have. The Thomas case was the first where that decision had been applied.

Another unusual aspect of the case was that defendants Atlantic Richfield Co., E.I. DuPont DeNemours & Co., Millennium Holdings LLC, NL Industries Inc. and the Sherwin-Williams Co. had thrown in their lot together.

The city of Milwaukee lost a lawsuit in June against NL industries accusing it of creating and conspiring with others to create a public nuisance that poisoned thousands of Milwaukee youngsters. That Circuit Court jury agreed there was a public nuisance but sided with NL Industries, saying the company did not intentionally and unreasonably engage in conduct that caused the nuisance and was not negligent.

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