City of Milwaukee loses lead paint case

John O'Brien Jun. 22, 2007, 2:27pm

MILWAUKEE, Wis. - The former manufacturers of lead paint can continue celebrating as they claimed yet another victory Friday in the ongoing saga of public nuisance lawsuits filed against them.

A Milwaukee jury decided that NL Industries was responsible for creating a public nuisance by manufacturing lead-based paint, found to be toxic and outlawed in 1978, but added that the company did not intentionally create the nuisance.

"The vast majority of property owners in the City of Milwaukee are responsible and maintain their properties," said Don Scott, trial counsel for NL Industries. "But a small number of landlords do not maintain their properties in a safe manner.

"Litigation is a distraction from the proven solution of enforcing the law against landlords who neglect their property."

A 10-2 vote got NL Industries off the hook for the $52.6 million the City sought. The case was heard in the Milwaukee County Circuit Court.

Last week, paint manufacturers picked up wins in Missouri's and New Jersey's supreme courts. Cases are still pending in Rhode Island -- where the state has been very successful -- and Ohio.

Critics say public nuisance claims are a way around the shortcomings of a products liability case, like the now expired statute of limitations. Lead paint was outlawed in 1978, and companies stopped manufacturing it.

Plaintiffs firm Motley Rice is credited with the idea of using a public nuisance claim to sue paint companies
and is representing several of the municipalities, counties and states attempting to do so.

The jury in Milwaukee also voted 10-2 that the company created a public nuisance. After some confusion, Judge John Franke ordered it to reconvene because the same 10 jurors who voted that way needed to be the same 10 who voted that NL Industries did not intentionally create the nuisance.

"The City of Milwaukee should intensify its efforts to hold landlords accountable. It is not good public policy for the city to deflect responsibility in enforcing these laws, especially when lead-based paint is a product that was legal and specified by governments at the time, including Milwaukee," Scott said.

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