Rhode Island lead paint victory may be first of many, lawyers say.

Rhode Island's recent victory in the landmark case in which a jury declared lead paint a public nuisance and required three paint manufacturers to pay for cleanup of contaminated buildings may inspire more cities plagued by peeling paint to take action, plaintiff advocates say. (Rhode Island v. Lead Indus. Ass'n, No. 99-5226 (R.I., Providence County Super. Ct. Feb. 22, 2006).)

Just days after the verdict, a California appeals court reinstated a class action against several former lead paint manufacturers. Courts have revived similar suits in at least two other states.

"The tide has finally changed against the lead pigment industry, which has escaped liability for the last few decades," said Jack McConnell, a Providence lawyer who was co-lead counsel at the trial. "Beginning with the Rhode Island jury verdict and including the California, New Jersey, and Wisconsin decisions, the industry is finally going to be held liable for its past misconduct."

The Rhode Island saga began in 1999 when the state attorney general filed suit against several pigment manufacturers, seeking damages for abatement, medical care for lead-poisoned residents, and education programs. The suit claimed that the defendants created an environmental hazard that was a public nuisance.

The first trial ended with a hung jury in 2002. When the case was retried, a six-member jury found in February that Sherwin-Williams Co., NL Industries, Inc., and Millennium Holdings were responsible for lead contamination of more than 200,000 homes. Judge Michael Silverstein ordered the defendants to pay for abatement but declined to award punitive damages because there was no evidence that the defendant's conduct was reckless or willful.

In a statement, Rhode Island Attorney General Patrick Lynch said it was "enormously gratifying" that the jury unanimously agreed that the state met its burden. "Although we acted on our right to seek punitive damages, this suit has always been about abatement," Lynch said. "Receiving a jury verdict ordering abatement was, and is, our ultimate goal."

Jorge Elorza, a law professor at Roger Williams University in Bristol, Rhode Island, said unless there is a critical piece of evidence that was incorrectly admitted or excluded in the case, the ruling is likely to be upheld.

"In Rhode Island, finding a public nuisance depends on whether there has been an 'unreasonable interference' with the health, safety, comfort, or convenience of the general community," he said. "Since the nuisance standard is so subjective, it will be very difficult for the appellate court (in this case the Rhode Island Supreme Court) to find no 'legally competent evidence' to support the outcome."

In lead paint lawsuits, it is almost impossible to prove which company made the paint that caused a person's injury. Lead pigment has been banned from use in paint since 1978. While Rhode Island's claims for unfair trade practices, negligence, strict liability, and civil conspiracy were dismissed, the public nuisance claim remained because it wasn't necessary to show culpability by individual defendants.

Last year, the Wisconsin Supreme Court ruled that paint companies in that state could be held liable under a theory called "risk contribution"--a modified version of market-share liability. (Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005).) The ruling allowed a boy who suffered brain injury from lead paint to sue paint manufacturers even though he didn't know which one made the paint that caused his injures. (See Rebecca Porter, Alternate Liability Theory Allowed in Lead Paint Case, TRIAL, Oct. 2005, at 74.) But not all states allow recovery under a market-share liability theory.

In the California case decided in March, a three-judge appeals panel ruled that the trial court erred by dismissing public nuisance, strict liability, negligence, and fraud claims and reinstated the lawsuit, which was filed by a coalition of cities, counties, and school districts. (County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313 (Ct. App. 2006).) Last August, a New Jersey appeals court reinstated a similar public nuisance suit. (In re Lead Paint Litig., No. A-1946-02T3, 2005 WL 1994172 (N.J. Super. Ct. App. Div. Aug. 17,2005).)

Many people involved in efforts to rid housing of lead contamination are excited about the Rhode Island verdict, Elorza said.

"Community advocates are hopeful that the judge will order the paint companies to pay for lead abatements for every single home where lead paint was used," he said. "This could make Rhode Island the first lead-free state in the country. It would be a tremendous victory for public health advocates and for the thousands of predominantly low-income children living in Rhode Island's old housing stock."

In another recent case, the Ohio Supreme Court ruled that the Cincinnati Health Department must disclose the addresses of buildings that have been ordered to remove potentially hazardous lead paint, because lead citations are open records under Ohio law. The city had argued that disclosing the addresses could reveal the identities of children exposed to lead, which might violate privacy provisions of the Health Insurance Portability and Accountability Act. (State ex. rel. Cincinnati Enquirer v. Daniels, No. 2005-0068, 2006 WL 685017 (Ohio Mar. 17, 2006).)