X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Paint manufacturers are on a roll when it comes to defending themselves against suits by city and state governments over lead poisoning. An Illinois judge recently dismissed a suit filed by Chicago against 12 paint manufacturers seeking to make them cover the costs of cleanup and treatment stemming from lead paint. City of Chicago v. American Cyanamid Co. The Chicago action came in the wake of similar rulings in New Jersey, California and Wisconsin. Dozens of defendants, including Sherwin-Williams, Atlantic Richfield, BP America and American Cyanamid, have been named in suits that are testing public nuisance claims against the industry. PUBLIC NUISANCE STRATEGY Lead paint was banned by the federal government in 1978. But plaintiffs allege that copious medical research has existed since the early 1900s showing that the industry knew or should have known about the harmful effects of lead poisoning — particularly on children. Most states and cities have enacted legislation that puts the onus on landlords to maintain or remove lead paint from their properties. But public nuisance lawsuits go after the industry as a whole to pay for the removal of the noxious substance from the walls of public buildings and private residences. Defense lawyers say the lawsuits are a misguided attempt to sidestep traditional products liability laws that would require the plaintiffs to prove whose products are actually in the buildings. “This just does not meet with our requirement of law,” asserted Donald E. Scott, a partner in the Denver office of Chicago’s Bartlit Beck Herman Palenchar & Scott, who has been defending NL Industries Inc. in several jurisdictions, including Chicago. “You can’t sue Ford without identifying whether the car was a Ford or a Chevy.” The city of Chicago’s complaint was modeled on earlier public nuisance suits that allowed plaintiffs to pursue similar theories of aggregate liability against the handgun industry, according to court documents. But Cook County Circuit Judge Nancy J. Arnold, the judge in American Cyanamid, underscored a significant difference between the industries. Handgun manufacturers, she noted in the ruling, had allegedly fostered a continuous underground market for illegal and unregistered handguns, whereas lead-paint manufacturers had ceased to supply the product years ago. “There is no ongoing nuisance alleged, except for the presence of paint sold and apparently applied many years ago,” Arnold wrote. The court also noted that at least four other state courts — in California, Maryland, New Jersey and New York — have said that public nuisance claims cannot be based solely on legal products later discovered to cause injury. So far, the most successful public nuisance lawsuit was also the first one, brought by the state of Rhode Island. That case made it to a jury last year, but ultimately ended in a mistrial because the jury could not reach a unanimous verdict. The case is scheduled to be retried in April 2004. Chicago Assistant Corporation Counsel Rosemary Krimble said she doubted that the court’s dismissal of their case would deter other municipalities from filing suits. Krimble argued the city’s case, along with Corporation Counsel Mara S. Georges and Deputy Corporation Counsel Lawrence Rosenthal. “Tobacco lawsuits were this way. Asbestos was the same,” Krimble said. “Courts are slow to change, but eventually the time will come.” Defense counsel point out that the industry has never lost or settled a case. But Scott added that it is too early to say whether the recent dismissals will deter future suits. “Until more courts have spoken, it’s hard to say.” Appeals are pending in several jurisdictions, including Milwaukee, and now Chicago. In its appeal, the city will argue that it should not have to draw a direct line between each defendant’s product and the injury because it is a public entity. Krimble said the trial court improperly compared its case to ones brought by private entities where one is required to show the direct cause. “If I’m an individual, I have to show what product hurt me,” said Krimble. “When you’re the public, you have to show what products hurt everybody.” Krimble said the city’s case more closely resembles an environmental action than a straight slip-and-fall tort claim. She compared it to environmental dumping cases where multiple defendants have been made to clean up toxic sites.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.