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R.I. Court Weighs Lead Paint Verdict

March 20, 2008
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A landmark jury verdict that could cost three former lead paint manufacturers billions of dollars is based on "old and well-established" law and should be upheld, lawyers for the state of Rhode Island told the state''s highest court in legal papers filed recently.

According to the Associated Press, the state says the companies'' appeal of the verdict represents their latest attempt to avoid responsibility for the public health harms of lead paint. They urged the state Supreme Court to uphold the jury''s decision so that the companies can begin cleaning up the roughly 240,000 homes in Rhode Island believed to still contain toxic lead paint.

A jury in 2006 found three companies -- Sherwin-Williams Co., NL Industries, Inc. and Millennium Holdings LLC -- liable for creating a public nuisance by manufacturing a product that continues to poison children. The companies have argued that the jury was allowed to rule against them despite hearing no evidence that any of their lead paint was still present in Rhode Island today, 30 years after the federal government banned it from homes.

But the state rejected that argument, saying it gave the jury more than enough evidence linking each of the three companies to Rhode Island. Lawyers cited testimony from one of their witnesses indicating that each of the companies had sold and promoted lead pigment for use in paint in Rhode Island.

The paint companies had argued frequently during the trial that landlords who neglected their properties -- not the paint companies -- should be held responsible for chipping and peeling lead paint in homes. But they took the unusual move of not calling any of their own witnesses during the trial. The state said recently that the companies were to blame for failing to call any witnesses to support that argument.

The state also said the jury was clearly able to distinguish among each of the defendants, noting that one of the companies sued, Atlantic Richfield Co., had been cleared of any wrongdoing.

In addition, the state defended its decision to sue the companies under the theory that they created a public nuisance. That theory forced the state to prove that the presence of lead paint in homes and buildings interfered with the general public''s health, safety and peace, and that the companies played a substantial role in causing the nuisance.

The state said the theory was "old and well-established" and that Rhode Island''s attorney general was entitled to use the theory in this case to protect the public -- something the companies have disputed.

The Supreme Court has scheduled arguments for May 15.

The state has proposed a $2.4 billion cleanup plan that would force the companies to fix up, clean or remodel hundreds of thousands of homes built before 1980, as well as playgrounds, day care centers and other buildings frequently occupied by children. A judge recently appointed two public health experts to evaluate the state''s plan and make recommendations on how any cleanup of contaminated properties should be carried out, if the verdict stands.

Rhode Island in 1999 became the first state to sue former lead paint manufacturers. An earlier trial ended in a hung jury in 2002.
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