Post-trial motions denied in AG Lynch's lead paint case

John O'Brien Feb. 26, 2007, 1:55pm


PROVIDENCE, R.I. - Rhode Island Attorney General Patrick Lynch scored another victory Monday in his case against lead-based paint manufacturers when a Superior Court judge denied the companies' motions for a new trial and judgment as a matter of law.

In a 197-page decision that can be found here, Judge Michael Silverstein, in addition to denying the motions, said he will appoint a special master to oversee the companies' cleanup of lead paint in the state. A little more than a year ago, a jury found that the three companies had created a public nuisance, and estimates say the cleanup of lead paint from state buildings will cost more than $1 billion.

Sherwin-Williams Inc., Millennium Holdings and NL Industries are planning an appeal to the state's Supreme Court. The jury cleared a fourth company, Atlantic Richfield, of responsibility last year, and DuPont settled before the trial for $10 million in lead paint remedies and education funding.

Though several cities have similar cases, Lynch's is the first case of the kind brought on by a state.

William Childs, an assistant professor of law at Western New England College School of Law, said the companies have good reason to appeal and "decent legal arguments as to why the nuisance law shouldn't apply to them."

Moreover, he says a case as high-profile as this one brought on by an attorney general warrants a fight, since other attorneys general may take Rhode Island's lead.

"You have to fight it every step of the way or you're going to have 50 of them, which might happen anyway," said Childs, who graduated from the University of Texas School of Law and worked in mass tort and intellectual property litigation at Williams & Connolly in Washington, D.C. "You gotta have an appeal. You can't just suck it up and pay off this thing when the exposure is so great."

Rhode Island's first lead paint case ended in 2002 in a mistrial, but the state filed again. Other New England attorneys general like Connecticut's Richard Blumenthal and Vermont's William Sorrell, who claims Vermont children will lose $80 million in earning power over their lifetimes because of lead paint, have been keeping close tabs on the situation.

Childs said that they are probably waiting for Rhode Island's Supreme Court to decide on the matter before they act.

"It's the sort of thing where they think, 'Why should I expend any resources until I have at least one good case on my side?'" he said.

In a three-paragraph statement, Lynch twice referred to keeping children safe from lead paint, which is toxic to many of the body's tissues and enzymes. Children, researchers say, are particularly susceptible to it.

In 1978, the federal government banned lead paint for residential use, but Rhode Island says it still contaminates about 250,000 older homes in the state.

"A year ago this month, the jury found that the harm caused by lead paint was so great and so widespread that it constituted a legal nuisance," Lynch added. "Today's final ruling is validation of our long fight to protect the public health and to ensure that our hardworking taxpayers no longer have to solve the problem themselves."

Bonnie Campbell, a former Iowa attorney general who is representing the companies, saw differently.

"We believe there have been a number of basic, legal errors throughout these proceedings. These errors were not corrected in today's ruling," Campbell said.

The companies argue that Lynch is misrepresenting the spread of lead poisoning and point to a decline in reported cases. They also say landlords who failed to maintain their properties were more responsible than they are, considering they stopped making the paint decades ago.

Cities such as St. Louis, Chicago, Milwaukee and Cincinnati have filed lead paint lawsuits. Recently, Ohio Gov. Ted Strickland vetoed a bill that would have prevented nuisance lawsuits against lead paint manufacturers while putting a $5,000 cap on non-economic damages in consumer protection cases. Ohio Attorney General Marc Dann publicly commended Strickland on the veto.

Childs called Lynch's argument "a creative use of case law," adding, "That's not to say it's right or wrong -- just new."

He also said that if there is no proof the three companies knew the effects of lead when they were manufacturing the paint, there should be no penalty. The companies dispute having any such knowledge.

"My general view is someone should be held liable when they knew or should have known about the effects of what they were doing," he said. "I don't know much about the details, of any smoking gun documents.

"The creation of liability for things someone in no way could have known about gives me pause. Again, I don't know if that's the case here."

Childs' blog can be found here.

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