PROVIDENCE, R.I. (Legal Newsline) - The State of Rhode Island's landmark lead paint lawsuit might be a lot of fuss over a receding problem, recently released figures show.
Incidents of lead poisoning among Rhode Island children have "declined dramatically" over the past 10 years, according to a report by the state Department of Health. This news comes with only a few weeks left before the state Supreme Court hears oral arguments in the State's suit against three former manufacturers of lead paint.
Only 1.3 percent of children tested had elevated levels of lead in their blood, down from 6.6 percent in 1998. In 2007, 388 children were found to have elevated levels for the first time.
"Rhode Island must continue to focus on primary prevention and lead-safe housing to protect children from becoming lead poisoning in the future," the report says.
More than half of the 388 first-time cases occurred in Providence, and the total amount reduced 22 percent from 2006.
Lead paint was outlawed in 1978, and plaintiffs firm Motley Rice convinced former Rhode Island Attorney General Shelden Whitehouse to hire it on a contingency fee to bring the first state-backed case over the issue in 1999.
An attorney at Motley Rice thought of bringing a claim of public nuisance to work around certain defenses, like the tolled statute of limitations.
The first trial resulted in a mistrial, the second (filed by current Attorney General Patrick Lynch) in a 2006 verdict against three companies, NL Industries, Millennium Holdings and Sherwin-Williams.
The state Supreme Court will hear oral arguments in the companies' appeal May 15. If the verdict is upheld, they may be on the hook for Lynch's proposed $2.4 billion abatement plan, but will not pay any compensatory or punitive damages.
Similar suits have failed in Wisconsin, Missouri and New Jersey. Sherwin-Williams attorney Charles Moellenberg blamed the Rhode Island loss on jury instructions given by Superior Court Judge Michael Silverstein.
Assistant Attorney General Neil Kelly had claimed figures had "reached a plateau" and would not decline more.
"The risk of a child becoming lead poisoned in Rhode Island has decreased over time," the report says. "Approximately one in four children (29.6%) born in 1992 were lead poisoned before the age of 6, compared to one in 17 children (5.9%) born in 2001.
"In order to further decrease the rate of lead poisoning, Rhode Island must continue to make lead-safe housing a priority."
It is the State's goal to eliminate lead poisoning by 2010. Cases of significant lead poisoning also went down, with only 94 being report. In 2003, there were 185.
Lynch's office had no comment.
"Plaintiff's overall strategy appears to be to de-emphasize the law, detract from the far-reaching legal and constitutional issues this case presents, and convince the Court that children will be severely and permanently injured unless the decision below is affirmed," a brief filed by Sherwin-Williams says.
"This suggestion is factually wrong, legally empty and an affront to the General Assembly, the Rhode Island Department of Health, and their successful policies and programs that continue to make great progress in eliminating lead hazards from the State.
"Indeed, the suggestion is refuted by the dramatic decline in childhood blood lead levels in Rhode Island that continues today."
The suit is being closely watched around the country. An amicus brief filed by 16 state attorneys general defended Rhode Island's suit, and Motley Rice attorney Jack McConnell, a campaign contributor of Lynch's, told the Providence Journal that he has been approached by other states about filing similar actions.