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Trying to capitalize on its landmark win earlier this year in a public nuisance case against the lead paint industry in Rhode Island, a South Carolina law firm has helped four Ohio cities file similar actions. The Mount Pleasant, S.C.-based plaintiffs’ firm Motley Rice is involved in state court actions filed by East Cleveland, Lancaster, Toledo and Akron. In their sights are Sherwin-Williams Co. of Cleveland; NL Industries of Dallas; Millennium Holdings LLC of Cockeysville, Md.; Atlantic Richfield Co. of Los Angeles; American Cyanamid Co. of Wayne, N.J.; ConAgra Grocery Products Co. of Omaha, Neb.; Cytec Industries Inc. of West Paterson, N.J.; and E.I. du Pont de Nemours & Co. of Wilmington, Del. In addition, the same day that East Cleveland and Toledo filed their cases, Sherwin-Williams filed suit in Ohio federal court to block the cases. Steven A. Davis of Crabbe, Brown & James in Columbus, Ohio, which is local counsel for Lancaster and works closely with Motley Rice and the other plaintiffs, said that “the law in Ohio for 100 years has been that if you make a mess you’ve got to clean it up.” Neither Ronald L. Motley nor John J. McConnell Jr., lead Motley Rice trial counsel in these and the Rhode Island cases, returned phone calls seeking comment. Former Iowa Attorney General Bonnie J. Campbell, now a Des Moines-based solo practitioner and spokeswoman for the joint defense team of Sherwin-Williams, NL Industries, Millennium Holdings and Atlantic Richfield, said that suing manufacturers rather than enforcing existing laws against negligent property owners only pretends to solve the problem. “We know where the properties are, we know who owns them, and we know that they generally have a lot more problems than chipped, flaking or peeling lead paint,” Campbell said. The public nuisance doctrine imposes liability on parties that interfere with the health, safety, peace, comfort or convenience of a community. A plaintiff has to show that the defendants caused or contributed to something that harms the community, but not that their actions harmed particular individuals. The Ohio suits are the first filed against paint manufacturers since a Rhode Island jury found against three of them in February. The state estimates that it could cost the industry as much as $3.7 billion to clean up its contaminated properties, but the industry has appealed the verdict. Rhode Island v. Lead Industries Association, No. 99-5226 (Providence Co., R.I., Super. Ct.). Public nuisance cases also are pending against the industry in California, Missouri, New Jersey and Wisconsin. The Ohio cities allege that the defendants created an environmental hazard and public health crisis by manufacturing, distributing and promoting lead-based paint products long after they knew of their associated health dangers. They claim that Ohio citizens continue to be poisoned each year by lead paint still present in public and private structures almost 30 years after the federal government banned the sale of lead pigment. The cases are City of Toledo v. Sherwin-Williams, No. G-4801-CI-200606040 (Lucas Co., Ohio, Ct. C.P.); City of East Cleveland v. Sherwin-Williams, No. CV06602785 (Cuyahoga Co., Ohio, Ct. C.P.); and City of Lancaster v. Sherwin-Williams Co., No. 2006CV1055 (Fairfield Co., Ohio, Ct. C.P.). Akron has since dismissed its case. City of Akron v. Sherwin Williams Co., No. 2006-106309 (Summit Co., Ohio, Ct. C.P.). In response, Sherwin-Williams filed an action in federal court in Ohio seeking to block those cities, as well as others it believes are preparing to file lawsuits-including Columbus and Cincinnati-from bringing these suits. Sherwin Williams Co. v. City of Columbus, Ohio, No. 06-cv-829 (S.D. Ohio). Sherwin-Williams asserts a variety of state and federal constitutional claims, and says that the public nuisance suits violate the industry’s due process rights.

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