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In October 1999, Ron Motley told a Dallas Morning Newsreporter that if he failed to bring the lead paint industry to its knees in three years, he would hand over his yacht — a 120-foot craft. A year and a half later, only one state and a handful of cities have joined Motley’s litigation crusade. And the industry continues to boast an undefeated record in more than a decade of court fights. So while lead company lawyers aren’t planning any cruises courtesy of Motley just yet, up to now they have been able to avoid the kind of broad-based courtroom war that he and his firm waged to force a multibillion-dollar settlement on Big Tobacco. Still, a recent ruling means that a closely watched Rhode Island case will go forward. The handful of cities suing paint companies is slowly growing. And, after all, nobody thought the tobacco industry could be beaten until Motley helped show them how. “I’m pretty sure we’re going to protect his boat,” says John J. “Jack” McConnell Jr., one of Motley’s partners, laughing. “I thought about asking him to give it to me if we win.” The outcome of Motley’s boast and McConnell’s prediction depend, in part, on whether the tobacco model will work against the lead industry. McConnell, based in the Providence, R.I., office of Motley’s Charleston, S.C., firm, Ness Motley Loadholt Richardson & Poole, represents the state in the case against eight companies and an industry group. Filed in 1999, it is the flagship in the battle against companies that manufactured lead paint. State of Rhode Island v. Lead Industries Association, No. 99-5226 (R.I. Super. Ct.). Lead paint can cause neurological damage — even death — in children who swallow its chips or dust. Lawyers for the state hope to force the industry to clean up decaying lead paint in Rhode Island homes and to prevent the poisoning of children in the future. While lead levels for most American children have dropped steadily over the years, advocates claim that the problem remains serious in cities with old, poorly maintained homes, like Providence. Like the tobacco lawsuits, the cases link the state’s prestige and enforcement powers to a private plaintiffs’ firm that has the resources to take on entire industries. Also like the tobacco lawsuits, any money the plaintiffs win is likely to go over the heads of people injured by the product into state and city treasuries — and to outside lawyers. LEAD FOLLOWERS In addition to Rhode Island, St. Louis has sued former lead paint manufacturers. In California, Santa Clara sued and was joined by Oakland and San Francisco. A suit filed a decade ago by New York’s housing authority is pending, although it has been narrowed considerably. Two Texas school districts have sued. And a week after a Rhode Island judge allowed the state’s lawsuit to proceed, in April, Milwaukee sued. Chicago, which filed one of the early cases against handgun manufacturers, is also considering a suit, McConnell says. And Ness Motley has received inquiries from as many as a dozen cities, he says. Other high-profile plaintiffs’ lawyers, including Baltimore’s Peter Angelos, have taken on individual cases and class actions. “What’s missing from contributing to the cleanup of these problems is the lead industry,” says Rhode Island Attorney General Sheldon Whitehouse. “They aren’t doing, in my estimation, one damn thing. Whatever their responsibility is, I can tell you one thing: It’s not zero.” Critics have characterized the alliance between government officials and outside trial lawyers, in lawsuits involving tobacco, handguns and lead, as a costly end-run around the legislative process. They say that the real intent is to extort settlements with the threat of litigation that could depress company stock prices for years. The trend has drawn the most fire from industries and from Republican politicians, who do not generally benefit from trial lawyers’ campaign largess. Ness Motley, which is expected to reap more than $1 billion in tobacco fees, contributed more than $1 million to candidates for national office in 2000, almost all to Democrats. McConnell, who has served as treasurer of the state Democratic Party, is well connected politically. “This has become something very close to a racket,” says former U.S. Attorney General Richard Thornburgh, a tort reform advocate who is advising the paint industry. He is counsel in the Washington, D.C., office of Kirkpatrick & Lockhart. TOOK A PASS Andrew Ketterer is one attorney general who decided to take a pass on lead litigation in his home state of Maine. He stepped down as attorney general after declining to run for re-election in 2000 and now advises lead and paint manufacturers. Among state AGs, “I don’t see a lot of support for suing manufacturers,” Ketterer says. Lawyers for Rhode Island say that going after manufacturers will not require the “critical mass” of multiple state lawsuits that was so powerful in the tobacco litigation. Attorney General Whitehouse says he is not troubled if Rhode Island winds up going it alone. “My strategy is not to get all the AGs to file mass, cookie-cutter lawsuits,” he says. “It’s to take this lawsuit to trial and win it.” Whitehouse’s adversaries are not sure they believe him. “I would think he’d feel pretty lonely,” Thornburgh says. “I think he made a mistake.” There have been successful lawsuits against landlords, who are often required by law to make sure apartments are free of lead paint. For example, in March, an Albany, N.Y., jury awarded $6.2 million to a brother and sister in a lead paint case against their landlord. But the companies that manufactured the paint have never paid a dime in verdicts or settlements in more than 40 lawsuits, beginning in the late 1980s. Just last June, NL Industries Inc. and PPG Industries Inc. won a major defense verdict in the case of a man who claimed he suffered neurological and intellectual damage from lead paint in the ’50s, when he was a small child. Both sides caution against drawing too many parallels between lead and tobacco lawsuits. For the plaintiffs, it raises expectations at a time when the legal assault is trying to find its legs. And the last thing former lead paint makers want is to be discussed in the same breath with Big Tobacco. “Tobacco, if you use it as intended by the manufacturer, can kill you,” says former Maine Attorney General Ketterer. It’s a distinction that AGs and plaintiffs’ lawyers argued countless times during the tobacco wars. Lead paint, when properly applied and maintained, is not a danger, the industry claims. Industry lawyers also claim that a raft of legal precedents prevent state and municipal governments from suing successfully. And, legal rules aside, the industry says that it acted responsibly as the dangers of lead paint became apparent over the years. For example, in the mid-1950s, the industry says, it agreed to stop producing leaded paint for interior home use. Lead paint was banned by the federal government only years later, in 1978. Lead industry lawyers contrast that response with the cigarette industry’s half-century of lies and evasions on smoking and health. “Baloney,” says McConnell. He says the agreement to stop marketing lead paint was riddled with qualifications, permitting the product to stay on the market for years. Lead paint continues to poison children to this day, for which the industry must take responsibility, he says. Plaintiffs’ lawyers claim that the industry withheld knowledge of lead’s dangers, a charge the industry vigorously denies. The plaintiffs aren’t the only ones looking for damaging evidence from the past. Lead company lawyers sent letters to Texas school districts that were considering lawsuits, warning them that they could be liable for their own lead hazards. And the U.S. Chamber of Commerce Institute for Legal Reform has filed freedom of information requests with Providence and Milwaukee to determine what their governments did with government grants earmarked for lead abatement. “Has some of this money been used for things it shouldn’t have been used for?” wonders James Wootton, the institute president. In April, Superior Court Judge Michael A. Silverstein dismissed many of Rhode Island’s claims but allowed the case to go forward on the theory that the lead industry created a public nuisance that must be abated. Immediately after the decision, both sides claimed victory, although Whitehouse says of the industry’s claim, “If that’s a victory, then I wish them many more such victories.” Lawyers can find out more about lead paint suits at http://www.leadlawsuits.com(the industry view) and http://www.aboutlead.com(Ness Motley’s).

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