LEGAL NEWSLINE

The Missouri Supreme Court has narrowly rejected an appeal from the city of St. Louis over its public nuisance suit against former manufacturers of lead based paint.

St Louis hoped to recoup unstated costs of removing noxious lead paint from some city housing. Because the city couldn't identify which company made which lead paint, it wanted to sue all six market participants.

The paint companies prevailed at trial because of insufficient evidence presented by the city and an appellate court upheld the lower court ruling last fall.

"The trial court did not err in entering summary judgment against the city based on its inability to provide any product identification evidence," stated the majority opinion released today.

In City of St. Louis vs. Benjamin Moore and others (docket# SC88230), the city also attempted to sue Millennium Chemicals Inc., NL Industries Inc., PPG Architectural Finishes Inc., SCM Corp., Sherwin-Williams Co. and XGD Inc.

City of St. Louis attorney Michael Garvin accused all six paint-makers of knowingly selling a product they knew posed a health risk to city homeowners.

A spokesperson for the paint companies hailed the ruling.

"The defendants have long argued that this distortion of nuisance law - in which you don't have to identify the manufacturer that made the product - is inconsistent with fundamental principles of our legal system," said Bonnie J. Campbell, former Attorney General of Iowa and spokesperson for the defendants.

"Today's ruling is a sound, well-reasoned decision that adds the weight of the Supreme Court of Missouri to other decisions rejecting the misapplication of public nuisance law."

The high court ruled in favor of the paint companies, 4-3.

Chief Justice Michael A. Wolff authored a dissent.

"The City of St. Louis can prove that multiple paint manufacturers sold lead-based paint in the city," he wrote. "The lead in the paint in buildings throughout the city is a poisonous nuisance that is a threat to public health and needs to be cleaned up. The city, however, cannot prove which lead-poisoned buildings have Benjamin Moore paints, which buildings have Sherwin-Williams paints, and so forth.

"This is not a personal injury case. It is a nuisance case. The answer to the question in this case, as in many cases, depends on which legal theory is used."

The St. Louis suit was sparked by a ruling in February 2006 from a Rhode Island Superior Court, LegalNewsLine has reported.

In the Rhode Island case, three of the six companies accused in St. Louis - Sherwin-Williams, NL Industries and Millennium Holdings - were ordered to pay an estimated $1 billion-plus in cleanup costs. The companies have appealed to the Rhode Island Supreme Court.

In April, Ohio Attorney General Mark Dann filed a public-nuisance lawsuit against 10 paint companies operating in the state to recover lead-paint cleanup costs at several Ohio cities. The suit has been strongly criticized by the state's GOP legislative leadership.

Another very similar lawsuit in California was side-tracked months ago when a superior court judge ruled in favor of seven paint-makers. The court said Santa Clara County could not hire lawyers on contingency to help prosecute the manufacturers in a public-nuisance suit.

Local governments in Texas, Mississippi, Illinois, Wisconsin and New Jersey have also filed similar suits against former lead-paint makers.

Rob Luke contributed to this story.