The National Pulse

Primed for Lead Paint Litigation


Neil Kelly
Photo by Scott Indermaur

Over the last few years, many municipalities have utilized the tort of public nuisance to press claims involving the manufacture and use of lead-based paint as a threat to children’s health as well as a burden to the entire community because of the cost of their care.

But the argument has failed to convince courts in New Jersey, Ohio and Missouri—and a jury in Wisconsin—all of which last year came down against cities and counties seeking to recover damages against former manufacturers of lead paint and pigment.

Despite those setbacks, however, observers say the Rhode Island Supreme Court’s ruling could revive attempts to use public nuisance theory to recover damages.

“The Rhode Island case is terribly important,” says Donald G. Gifford, a University of Maryland law professor who has written extensively on the topic and has advised paint companies. “If one state manages to recover immense sums of money from manufacturers, then other state attorneys general are going to feel an enormous amount of pressure to follow suit.”

In 1999, Rhode Island sued the Sherwin-Williams Co. and three other companies that once manu­factured lead paint, alleging that they knew their paint was toxic—an allegation the companies dispute. The first trial ended in a deadlocked jury in 2002.

In early 2006, a six-member jury in Providence found that three lead pigment manufacturers—Sherwin-Williams, Millennium Holdings and NL Industries Inc.—were liable for creating a public nuisance. A fourth, Atlantic Richfield Co., was cleared of liability.

In Rhode Island v. Lead Industries Association, No. SU-07-121-A, the pigment manufacturers say the trial court should not have instructed the jury that it could find liability without proof of fault. This expanded notion of public nuisance, they argue, threatens to undermine well-established product liability law. The state, on the other hand, says public nuisance was applied correctly.

Lead paint was banned in the U.S. in 1978. Studies show that children who ingest paint chips or dust can develop learning disabilities or brain damage; the effects can be fatal.

ABATEMENT ISSUES

Rhode Island authorities say that a lead paint abatement program is needed to protect the chil­dren of their state. Since 1991, Rhode Island has identified more than 37,000 children who have elevated blood lead levels, according to state authorities.

“Our state has been confront­ed with a public health problem that’s just not going away,” says Assistant Attorney General Neil F.X. Kelly. “It’s our job to keep our children safe by making sure they are no longer harmed by lead poisoning.”

The state’s abatement plan could require manufacturers to spend an estimated $2.4 billion cleaning up lead hazards from an estimated 240,000 houses.

Ralph Scott, acting execu­tive director for the Alliance for Healthy Homes in Washington, D.C., says that lead paint poisoning remains a serious health hazard for children nationwide.

“Lead paint exposure can cause permanent brain damage and can be associated with decreased learning ability and performance, high drop­out rates, aggressive behavior, hearing loss, hypertension, kidney damage—and the list goes on,” says Scott. “It has known detrimental effects on almost every organ and major body system.”

“Prevention is the only sensible approach rather than waiting for children to be poisoned first. By then it is too late—they have per­manent harm.”

But lawyers and representatives for the manufacturers say they should not be forced to pay for public health programs.

Company representatives say that, rather than hiding the risks, they worked to educate homeowners and contractors once those risks were discovered. The focus, they say, should be on individuals and com­­pa­nies in control of aging properties—such as landlords who allow their buildings to deteriorate and exhibit conditions like flaking paint.

“Property owners become bene­ficiaries of the abatement program,” says Pittsburgh attorney Charles H. Moellenberg Jr., who represents Sherwin-Williams. “The worse you maintain the property, the more you get out of the abatement.”

Moellenberg adds that he is optimistic that the Rhode Island Supreme Court will reverse the jury verdict.

“This case is an aberration,” says Moellenberg, who practices at Jones Day. “A number of other state high courts have taken a serious look at the public nuisance theory and have found it flawed.”

BIRTH OF A SUPER TORT

According to the Restatement (Second) of Torts, a public nuisance is, broadly defined, an unreasonable interference with a right common to the general public.

In recent years, the public nuisance theory also has been used in lawsuits against gun manufacturers, tobacco companies and the like. Some legal experts say the theory is being applied improperly, particularly in the cases involving lead paint.

“Public nuisance was a sleepy theory for centuries, reserved for things like disturbing the peace and running a brothel,” says Phil Goldberg of the Washington, D.C., office of Shook, Hardy & Bacon.

“It was more often used before zoning laws were in place. The Rhode Island case involves taking this tort and morphing it into a super tort that can overcome well-developed product liability law.”

But the theory’s proponents have not fared well. Last June, the New Jersey Supreme Court rejected, 4-2, the public nuisance claims of 26 cities and counties. In re Lead Paint Litigation, 924 A.2d 484.

“We cannot help but agree with the observation that, were we to find a cause of action here, ‘nuisance law’ would become a monster that would devour in one gulp the entire law of tort,” wrote Justice Helen E. Hoens for the majority.

Also in June, the Missouri Supreme Court ruled 4-3 that the city of St. Louis had failed to prove which defendant company was responsible for lead paint poisoning. City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110.

That same month, a jury in Milwaukee found that lead paint was a public nuisance but that defendant NL In­dustries did not cause the nuisance. City officials had sought to re­cover $53 million in health and cleanup costs, according to published reports. City of Milwaukee v. NL In­dus­tries Inc., No. CA 01-CV-3066 (Mil­waukee County Cir. Ct. June 22, 2007).

And last December, a judge in Ohio dismissed the city of Toledo’s lawsuit against former manufac­turers of lead paint and pigment. The ruling said that the city’s pub­lic nuisance claim instead should come under the state products lia­bility act, and that the statute of limitations had expired. City of Toledo v. Sherwin-Williams, No. G-4801-CI-200606040. (Lucas County Ct. of C.P. Dec. 12, 2007).

TRIUMPHS ELSEWHERE

But attorney Fidelma Fitzpatrick, who rep­re­­sents Rhode Island in its case, points to successes. For example, in March 2006, a California appellate court reinstated a lawsuit filed in Santa Clara against lead pigment manufacturers, which included claims of public nuisance, strict liability, negligence and fraud. County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313. The California Supreme Court did not pick up the case on appeal.

“These cases are custom-made for the public nuisance theory,” says Fitzpatrick, who is with the Provi­dence office of Motley Rice. “There’s a large-scale public health problem and a recognized solution that protects children from getting poisoned in the first place.”

Yet some legal experts still worry that public nuisance cases stretch the traditional confines of tort law.

“If the Rhode Island case succeeds, the next question is: Is this an aberration, or has it really set a new track for nuisance theory? It could open the door for a new generation of mass torts suits,” says Goldberg, who has written amicus briefs in lead paint cases on behalf of business groups.

But legal watchers like Richard L. Green, chair of the Toxic Torts and Environmental Law Committee of the ABA’s Tort, Trial and Insurance Practice Section, say there’s no need to sound any alarms just yet. The cases, he says, are small pieces of developing law. Common law, he says, contracts and expands on certain concepts slowly through time, often in a patchwork-like manner.

“In the next 10 years, there will be a lot of interesting case law about the efforts to expand public nuisance,” says Green of the Kansas City office of Stinson Morrison & Hecker. “We’ll just have to see how these cases come out.”

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