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The first state action seeking to hold the paint industry accountable for health hazards caused by lead paint used decades ago is about to go to trial. The trial, due to start on Sept. 4 in Providence, R.I., is sure to be closely watched by defendants, plaintiffs and representatives of cities and states. The state of Rhode Island is the plaintiff but isn’t seeking compensation for injuries suffered by individuals exposed to lead. Instead, it is pursuing the novel claim that the defendant manufacturers and distributors of lead paint or lead created a public nuisance and should be held responsible for cleaning up what’s remaining in thousands of buildings in the state. The first phase of the trial will consider only one question — whether the presence of lead paint in Rhode Island buildings constitutes a public nuisance. If the jury says it does, later phases will consider fault and remedies, including damages, says the lead trial counsel for the state, Leonard Decof of Providence’s Decof & Decof. Also deferred until after the nuisance phases are the state’s products liability claims over lead paint in state-owned buildings. Whitehouse v. Lead Industries Assoc., No. 99-5226 (Providence Co., R.I., Super. Ct.). POTENTIAL RIPPLE EFFECT Although the question in the first trial is narrowly drawn, the effect on other litigation could be significant. Rhode Island is the first state to bring a public nuisance claim, but the same charge has been leveled by more than a dozen cities and counties nationwide and other states are considering their own suits. “This is the flagship case,” says Donald Scott of the Denver office of Chicago-based Bartlit Beck Herman Palenchar & Scott, defense counsel for NL Industries Inc., one of the defendant companies. The suit was intended, he says, “to drum up interest by the other attorneys general.” The potential cost could be enormous, says Ted M. Warshafsky of Milwaukee’s The Warshafsky Law Firm, who is representing the city of Milwaukee in similar litigation. “We can prove $70 to $100 million in damages to the city of Milwaukee alone for past and future abatement,” he says. The state of Rhode Island, adds Decof, is seeking remedial action on “hundreds of thousands” of buildings. A plaintiff’s win, however, would break a long losing streak. After 15 years of litigation against the industry, including lawsuits brought by individual plaintiffs and public entities, “the industry has never settled and the plaintiffs haven’t gotten a penny,” says industry attorney Timothy Hardy of the Washington, D.C., office of Chicago’s Kirkland & Ellis. Rhode Island Attorney General Sheldon Whitehouse filed the suit in October 1999 against NL Industries, Sherwin-Williams Inc., Atlantic Richfield Co. and five other companies, charging that they were responsible for a public health crisis. “Providence is the lead paint capital of the country,” says Eileen Quinn, deputy director of Washington, D.C.-headquartered Alliance to End Childhood Lead Poisoning. “In Providence, 25 percent of kindergarten children go to school with elevated blood lead levels.” In a statement at the time the lawsuit was filed, Whitehouse blamed this record on the defendants. The industry, he said, “knew lead was toxic dating back as early as 1904, yet promoted its use and profited by that use. It willfully made the mess that had endangered the health of many children and imposed great burdens on Rhode Island families and the state.” The essence of the lawsuit’s theory is that “if there is a harm that the public ought not have to bear, it’s a public nuisance,” says Linn Freedman, deputy chief of the civil division of the Rhode Island Department of Attorney General, who will be co-lead counsel for the trial. The state seeks compensation for past, present and future lead removal. Lead paint was completely banned by the federal government in 1978 and has not been sold for decades. But it remains on the walls in many older apartment buildings and homes, Decof notes. The paint was commonly covered by layers of new paint. Whenever paint was scraped off or walls deteriorated in these buildings, children were exposed to paint chips and dust containing lead. The problem is particularly acute in Rhode Island, says Quinn, because the housing in less affluent parts of the state, particularly in the cities, tends to be older, wooden and poorly maintained. Defense motions for dismissal were unsuccessful, and in August the U.S. Supreme Court rejected defense attempts to delay the trial. The defendants had asked that it be postponed until all the approximately 300,000 building owners where lead paint existed could be notified of the litigation. The defendants continue to dispute the claims by the state, says Scott. “The presence of lead paint is not a public nuisance. Lead paint when properly maintained is not a hazard. Deteriorated housing causes the problems,” he adds. “The state is trying to point fingers at the industry, but the real problem — and the Rhode Island Department of Health, the EPA, the Centers for Disease Control and HUD all agree — is these pockets of deteriorated housing.” Scott says the state should accept much of the blame: “Rhode Island has a good lead paint law, but practically all the landlords are in violation of the existing law and they know it’s not enforced.” The industry recommended against using lead paint in housing long before the government banned it, says Hardy. As early as 1955, he says, the industry voluntarily began labeling lead-based paint as inappropriate for interior walls. The attorneys and lead paint abatement activists are unimpressed with the industry’s record, however, Quinn says. “They should have pulled the product off the market back in the 1920s when the evidence was clear” of its dangers, he says.

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