The Deadly Politics of Industrial Pollution

The Deadly Politics of Industrial Pollution

"... The Deadly Politics of Industrial Pollution": Taking Action in a Landmark Case Against the Lead-Paint Industry

Sunday, March 05, 2006

We have been moving right along with our project, conducting research and planning out our final report. The latest update from the trial is that the judge dismissed punitive damages claims, declaring that such damages are intended to punish criminal behavior. The companies have not manufactured the paint for a long time and standards for lead poisoning of children have changed since the first half of the twentieth century when most of the paints were sold. Because of this, the companies should not be held to current standards and thus should not be held responsible for punitive damages.
This decision does not mean that the companies will not suffer severe penalties for their negligence. The main goal of this trial was to force the companies to pay for the abatement of the lead paint, which was achieved. Consequently, the companies will have to pay over $1 billion to clean up an estimated 240,000 homes in Rhode Island.
My section of the project will be broken down into seven parts in order to closely examine each of the two trials that took place in Rhode Island. I chose not to compare this case to other toxic torts such as the national tobacco litigation because, as Rhode Island’s lawyer Jack McConnell stated, each case is unique. Mr. McConnell played a significant role in the tobacco litigation. Unlike tobacco, the issue of lead paint has not been addressed in court at the federal level and there have not been any nationwide consensuses on how to deal with this toxic substance. Mr. McConnell has stated, however, that he has already received calls from other states that wish to pursue lawsuits similar to the case in Rhode Island. Below I have included the initial outline of my paper.

1. 1st Case Summary
On October 12, 1999, the first of the two Rhode Island lead paint cases, Rhode Island v. Lead Industries Association, the Attorney General of the State of Rhode Island, Sheldon Whitehouse, filed a complaint against several lead pigment manufacturers and their trade association. The defendants included nine named corporations in addition to a number of unnamed corporations. Rhode Island pled ten causes of action in seeking injunctive, punitive, and compensatory relief: (1) public nuisance, (2) violation of the Rhode Island Unfair Trade Practice and Consumer Protection Act, (3) strict liability, (4) negligence, (5) negligent misrepresentations and omissions, (6) fraudulent misrepresentations and omissions, (7) civil conspiracy, (8) unjust enrichment, (9) indemnity, and (10) equitable relief to protect children. This case lasted seven weeks and ended in a mistrial; four jurors sided with the paint companies and two sided with the state.
2. 2nd Case Summary
In 2002, the Attorney General of the State of Rhode Island filed the second of the two cases, Whitehouse v. Lead Industries Association. In this case, the jury was faced with the following questions: (1) Whether lead-based paints are a public nuisance in Rhode Island, (2) Whether each company liable for creating the nuisance, and (3) Whether the companies should be responsible for the abatement of lead paints. This trial lasted fifteen weeks and ended when the jury found three companies, Sherwin Williams, NL Industries, and Millennium Holdings liable for creating a public nuisance; Atlantic Richfield was not found liable and DuPont settled with the plaintiff for $12 million about two months before the second trial was scheduled to begin. This paper will focus primarily on the second case.
3. Why Rhode Island?
It was important for Rhode Island in particular to file this lawsuit because the poisoning rate in Rhode Island is more than twice the national average, prompting the state to require blood tests of every child less than 6 years of age. The state has many older homes built before lead paint was banned in 1978, with many urban homes having been poorly maintained. This poor maintenance damaged Rhode Island by forcing the state to pay discovering and abating lead, detecting lead poisoning, providing medical care for lead-poisoned residents of the state, education programs for children injured from lead exposure, and education programs for state residents.
4. Who is Involved?
There are many people involved on the plaintiff’s side of the case. The individual primarily involved is Sheldon Whitehouse, the former Rhode Island Attorney General who originally filed the first suit in 1999. Because the case has continued for such a long period of time, the current Rhode Island Attorney General, Patrick Lynch, has been involved as well. There were three attorneys representing the state in this case. Leonard DeCof, the dean of the state’s personal injury lawyers, was the primary lawyer. He retained by the former governor of Rhode Island, Bruce Sundlun, to recover millions of dollars in damages from accounting firms, insurance companies, and credit unions after the state’s credit unions collapsed. Linn Freedman is the deputy chief of the attorney general’s civil division and argued most of the pretrial motions for Rhode Island for the first trial. The third lawyer is Jack McConnell, a partner in Ness Motley’s Rhode Island office and state Democratic Party treasurer. He was one of Ness Motley’s lawyers who negotiated the $240 billion tobacco settlement. Most importantly, this case involved about 230,000-250,000 homeowners in Rhode Island whose houses are coated with lead paint. Each of the lawyers in the trial represents a specific corporation, but because the trial focuses on the general question of public nuisance, the three represent all eight companies.
The defense side involved the following companies: NL, ARCO, DuPont, Sherwin Williams, Millenium, ConAgra, The O’Brien Corporation, and American Cyanimid Company. There were three attorneys representing these companies. John Tarantino, the president of the Providence law firm in Providence, Adler Pollack and Sheehan, was a strong asset for the team because he was a local lawyer, whereas the others were from other states. Another lawyer is Donald E. Scott, a partner at Bartlit Beckin Company in Colorado. He successfully defended Dutch Boy paint company in 2000 from a suit by gentleman who said he was poisoned as a toddler. The final member of the defense team, Laura Ellsworth, is a partner at Jones Day in Pittsburgh, a firm that has represented half the Fortune 500 companies. She has frequently lectured and written about the use of expert witnesses and trial tactics.
5. Arguments
In the second case, the plaintiff argued that lead-based paints are a public nuisance and that it is the manufacturers’ responsibility to pay for abatement. The defendant argued that lead-based paint does not cause problems if it is properly maintained. The risks that lead paint poses can be solved through educating the public, making a better effort to maintain properties, and doing more enforcement against landlords who let properties deteriorate.
6. Analysis of Differences Between the Cases
The first trial was supposed to be the first phase of a series of hearings. For the second trial, the state consolidated its nuisance case with evidence about liability that was supposed to be heard in a separate phase. The question for the second trial was simpler than the one imposed for the first trial and was opposed by defense lawyers, who said it tilted in favor of the state. The second question was: "Do you find that a consequence of the presence of lead pigment in paint and coatings in buildings throughout the state of Rhode Island and, if any, the harm and/or threat of harm resulting therefrom is a public nuisance?" The question for the first trial was: "Does the presence of lead pigment in paint and in coatings, in homes, schools, hospitals and other public and private buildings throughout the state of Rhode Island constitute a public nuisance?" That statement was difficult to prove because the state does not generally look for lead problems in schools, hospitals and other public buildings. Nearly all inspections are confined to homes where lead-poisoned children live.
7. Importance of This Case: Past, Present, Future
This case represents a historical precedent. It marks the first loss that paint companies have suffered in the face of many lawsuits by communities, counties, and state governments in 16 other states. It will certainly pave the way for other states to bring similar suits, as there have already been recent procedural victories in New Jersey and Milwaukee, as well as a go-ahead for class action suit in Chicago. Presently, the defense is trying to get the case dismissed and will be appealing the verdict. After the verdict was read, stocks in the paint companies fell, proving that consumers are gaining power and will raise their expectations of manufacturers of toxic substances. This case will create more awareness about the dangers of toxic substances and will draw attention to the manufacturers’ responsibility of communicating that danger to the consumers.


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