Milwaukee loses appeal in lead paint case

Chris Rizo Nov. 26, 2008, 11:48am

Patricia Curley

MADISON, Wis. (Legal Newsline) - A Wisconsin state appeals court has rejected the city of Milwaukee's effort to force a former lead paint manufacturer to pay for the cleanup of thousands of contaminated properties.

The District 1 Court of Appeals ruled Tuesday that NL Industries Inc. does not have to pay the city's costs of cleaning up about 11,000 homes contaminated by lead paint.

In a 2001 lawsuit, the city had sought to recover $52.6 million in damages for a cleanup program from 1992 to 2006. The federal government banned the use of lead in household paint in 1978.

Last year, a Milwaukee County jury ruled that although lead paint in Milwaukee homes was a public nuisance, NL Industries had not "intentionally and unreasonably engage in conduct" that caused the contamination.

The city of Milwaukee appealed the decision.

Officials argued that NL Industries knew for many years that childhood lead poisoning posed a serious health danger, and even so continued to sell their products.

The city also sought a new trial, arguing, among other things, that there were five purported erroneous rulings on the jury instructions, three allegedly separate instances of improperly admitted evidence and because of the trial court's decision to dismiss the city's nuisance claim based on reckless conduct.

The appeals court, in a 2-1 ruling, rejected the city's arguments.

"We conclude that there is credible evidence in the record to support the jury's conclusion that NL Industries did not know that the public nuisance found by the jury was resulting or was substantially certain to result from its conduct, where the dangers associated with lead dust, which are largely responsible for the hazardous childhood lead exposure at issue, were unknown during the time NL Industries sold lead pigment and paint," Presiding Judge Patricia Curley wrote for her and Judge Ralph Adam Fine.

Judge Joan Kessler dissented, saying the city was entitled to a new trial.

Similar lawsuits filed by local officials in Missouri, New Jersey, Illinois and Rhode Island have been rejected by courts.

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