Cohen, Milstein, Hausfeld & Toll Announce Appeals Court Rules That Milwaukee Lead Paint Suit Can Go to Trial; Major Victory for the Children of Milwaukee.

MILWAUKEE, Wis. -- In a ground-breaking ruling released today, the Wisconsin Court of Appeals became the first appellate court in the country to uphold a City's right to sue lead paint companies for creating a public nuisance by selling and promoting lead pigment and lead paint when they knew it to be hazardous. The City of Milwaukee brought the lawsuit in 2001 against two defendants: NL Industries, Inc. (formerly known as "National Lead Co.") and Mautz Paint (now owned by The Sherwin-Williams Company). A trial court originally dismissed the case in 2003.

Childhood lead paint poisoning is a severe public health problem in Milwaukee. The disease causes irreversible brain damage and learning disorders in young children exposed to lead paint dust. In 1998, one in five Milwaukee children had blood lead levels testing at or above the Center for Disease Control's threshold for lead poisoning. The largest contributing factor to this epidemic is the older housing stock in Milwaukee -- much of which is covered in lead paint. In particular, window friction causes toxic lead dust to be released into the environment.

Milwaukee's Health Department initiated an award-winning abatement program to clean-up the lead paint in housing throughout the City expending millions of dollars on these efforts. The City's lawsuit seeks compensation for this abatement from companies that manufactured and sold and promoted lead pigment and lead paint in Milwaukee so that tax-payers are not burdened with the bill.

A lower court initially granted summary judgment in favor of the defendants holding that because the City could not prove who manufactured the lead paint on any given window surface, the lawsuit had to be dismissed. On appeal, the City argued that the public nuisance was a "community-wide harm" and that it did have evidence to show that the defendants caused this harm to the entire community.

The Wisconsin Court of Appeals agreed with the City and reversed the lower court's ruling. In particular, the Court held: "Based on our review of the current record, we are persuaded that there are disputed material facts concerning the extent of both defendants' sales in Milwaukee and whether those sales were a substantial cause of the alleged nuisance. We conclude, therefore, that this is an issue for the jury. We likewise conclude that the extent and effect of promotion of lead paint sales by both defendants and their knowledge of the potential hazards of the paint is an issue of material fact for the jury."

The Court also upheld the City's conspiracy claim against the defendants noting: "The City has produced evidence that both defendants were active in trade associations that promoted the use of lead in paint to be sold to the public. There is also evidence that defendants continued to promote the use of lead paint despite knowledge of the risk to health brought about by its use in homes."

The City is represented by Richard Lewis and James Pizzirusso of Cohen, Milstein, Hausfeld & Toll, PLLC in Washington, DC and Ted Warshafsky of the Warshafsky Law Firm in Milwaukee, Wisconsin.

According to Richard Lewis, "These companies have never accepted responsibility and have never been held accountable for poisoning thousands of children with their lead pigment and lead paint which they knew to be highly toxic since the early 1900s. They try to blame landlords, parents or even the children themselves for their injuries. Today's decision is a major victory for the children of Milwaukee. The Court's ground-breaking ruling is the first of its kind to uphold a governmental entity's right to seek abatement damages from companies that knowingly manufactured and sold toxic lead paint."

"The Wisconsin Court of Appeals upheld the right of a jury of Milwaukee citizens to hear the City's evidence, evaluate it, and decide whether these defendants were responsible for causing the lead-paint public nuisance in the City of Milwaukee. We feel confident that once this case proceeds to trial, these corporations will finally be held accountable for their actions."

Cohen, Milstein, Hausfeld & Toll, PLLC is a national firm with a long history of using litigation to the protect public health and seek compensation for those who are injured. Cohen, Milstein has represented individuals and communities injured by lead and other toxic products and is presently examining international lead poisoning cases in Mexico and South Africa.

A copy of the Court of Appeals decision is available on the Cohen Milstein site at www.cmht.com.