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Paint manufacturers are the latest targets in the crosshairs of government lawsuits, joining tobacco companies and gun makers as defendants accused of bad behavior and producing products that are harmful to the public.
Rhode Island, the first state to pursue lead-paint litigation, was given the go-ahead by the state's Superior Court earlier this month to proceed to trial against paint makers in a case that seeks to force the companies to pay for the removal of lead paint in private homes and public buildings. The city of Milwaukee in a suit filed April 9 is seeking what a plaintiff's attorney says could amount to as much as $100 million to remove lead paint in the city's older rental properties.
Lead paint has been linked to several ailments, including learning disabilities in children who ingested paint chips that have flaked from walls of older homes or schools.
The Rhode Island suit charges that the defendants knew or should have known since the early 1900s that lead was hazardous to human health. Although not all the defendants produced lead paint at that time, the suit charges that they should have been aware of growing accounts of childhood lead poisoning and scientific literature relating to such hazards.
In 1955, paint manufacturers voluntarily stopped production of interior lead-based paints and in 1978, the U.S. Congress banned lead paints.
Paint makers have faced a number of lawsuits over lead paint since 1989. Defendants in such cases have banded together to counter what the companies say is a legal and public relations attack against the industry. The group is providing public background information on lead paint via a Web site, www.leadlawsuits.com, and it says that of the approximately 50 lead-paint cases that have been resolved, none has been lost or settled by the industry.
The suits by Rhode Island and Milwaukee follow the recent trend of governments to seek millions of dollars for what they claim are expenses to correct problems caused by a faulty product.
The most notable of such suits were those brought by states to recover the costs of treating smoking-related illnesses. The settlement reached with state attorneys general to end that litigation amounted to $368.5 billion. In the wake of that outcome, gun makers have come under fire from municipalities that are suing to recover expenses related to health care and other costs associated with gun violence.
Some see a clear trend of governments looking for defendants in such cases, others say it isn't so.
"There's no question that this is a trend," said Ann W. Spragens, senior vp and general counsel with the Alliance of American Insurers in Downers Grove, Ill. Insurers are particularly worried about the willingness of state courts to consider "new theories of causes of action," brought by state governments, she added.
It has become a "standing right of governments to bring such suits," Ms. Spragens noted. The lead paint cases are similar to the tobacco suits in that a state government has been granted the right to sue the companies to recover damages the plaintiffs say were caused by the defendants' product, according to Ms. Spragens. Suits against handgun makers are similar, she added, but so far have been brought by municipalities rather than states.
The lead paint lawsuits did not spring directly from the success of the tobacco settlements, argued Richard Lewis, whose firm represents Milwaukee in its suit against paint companies.
"The idea that this is a direct result of the tobacco litigation is a pretty superficial view," said Mr. Lewis, an attorney with Cohen, Milstein, Hausfeld & Toll in Washington. "Lawyers have been working on this for almost 20 years now," he said of lead paint cases.
He acknowledged, however, that the success of the states' tobacco suits "was a factor," in his firm's decision to file the suit. "But not a major one," Mr. Lewis said. "The overwhelming factor is the responsibility of the pigment industry." Their product is "hurting kids," he added, "and there's no end in sight."
Mr. Lewis' firm was not involved in tobacco litigation, he said, but is working on lawsuits filed by four cities against gun makers.
Another firm that has worked on tobacco cases is involved in lead paint litigation. Ness, Motley, Loadhold, Richardson & Poole, based in Charleston, S.C., is representing Rhode Island in its lawsuit.
In the Rhode Island case, Superior Court Judge Michael A. Silverstein ruled that the state could proceed with its suit on grounds that lead paint is a public nuisance under state law. The judge did not allow, however, the state to continue its claim for the costs of special education for children harmed by lead poisoning. He also dismissed negligence claims and those that charged the industry with making a defective product.
A conspiracy count, similar to those that appeared in tobacco lawsuits, did survive the judge's ruling. The state has charged that paint makers "agreed to mislead the public" about the hazards of lead paint while continuing to promote and sell it.
Both sides claimed a win in the judge's ruling.
Mr. Whitehouse said in a statement that paint makers "whose dishonesty about the safety of lead paint caused all this, and who profited from it, want zero responsibility for making it right. But their responsibility should not be zero, and today's victory is an important step towards making them do their share to clean up the mess they made."
Defendant Sherwin-Williams Co. released its own statement, saying the ruling was "an important victory" because the court threw out the "bulk of the plaintiff's claims." Particularly important, the paint manufacturer said in the statement, was that the court ruled that no alleged conduct before 1970 could be used to prove any claim under the state's unfair trade practices act. "This is significant," Sherwin-Williams said, "because the purported misconduct alleged in the complaint took place before 1970."
Among the defendants in the case are: NL Industries Inc. of Houston; Atlantic Richfield Co. of Los Angeles; American Cyanamid Co. of West Paterson, N.J.; E.I. du Pont de Nemours & Co. Inc. of Wilmington, Del.; and The Glidden Co., a unit of Imperial Chemical Industries P.L.C. in England.
The Milwaukee suit also names NL Industries. The other defendant in that case is Mautz Paint, a Madison, Wis.-based paint maker.
Mr. Lewis said the city of Milwaukee's suit was filed under "various theories to require them to pay damages for their historical conduct" of producing lead paint that led to injuries. The suit does not seek to recover public health costs but instead asks for compensatory and punitive damages against the companies that allegedly concealed the hazards of lead paint while continuing to sell it.
Damages that may be recovered in the case will be used partly to fund an existing lead-paint abatement program in Milwaukee, said Mr. Lewis. "Milwaukee has a very ambitious program. Lead-paint poisoning is a very serious problem" in the city, he said, because there are so many old houses there.
The abatement program targets windows in rental properties built before 1950, Mr. Lewis explained. "These are the high-risk homes, and windows are the high-risk components," he said.
Neither NL Industries nor Mautz Paint could be reached to comment on the suit.