Ruling may boost lead paint litigation.

The attorney general of Rhode Island can pursue a lawsuit against eight manufacturers of lead pigment and the industry's trade association, a state judge has ruled. The suit aims to set a national precedent by holding paint companies liable for the public health danger posed by lead in paint.

Attorney General Sheldon Whitehouse has standing under Rhode Island law to pursue litigation that protects the public interest, wrote Superior Court Judge Michael Silverstein. "If the attorney general could not bring such actions, it appears that wrongs to the public interest would not be able to be vindicated by the state." (Rhode Island v. Lead Industries Assr, No. 99-5226 (R.I., Providence Super. Ct. Apr. 2, 2001).)

"The [Rhode Island] ruling is very significant because it establishes the legal theory that the attorney general has standing as a public health advocate to try to abate the problem of lead as a public danger," said Boston attorney Neil Leifer, who is working on a similar case for counties in California. "This is a new wave of [lead paint] litigation. The cases in the past were ]brought] mostly by individuals. They failed because they couldn't prove which company made the paint on their walls."

Inspired by the settlement between the tobacco industry and state governments seeking reimbursement for smoking-related medical costs, Whitehouse filed the suit seeking millions of dollars from the paint industry to pay for removing paint from homes and caring for poisoned children. The 10-count lawsuit seeks damages to "get the lead out of Rhode Island's children, homes, and buildings by paying to treat children with lead poisoning, meet the education needs of affected children, and abate lead paint from buildings and homes."

The complaint cites documents dating back to 1904, from within the paint industry and the medical community, warning that lead in paint is poisonous. By the 1930s, the Lead Industries Association acknowledged the dangers of lead paint on children's toys and furniture and "internally suggested that its members consider discontinuing the use of lead on children's toys and furniture." However, the suit maintains, the defendants continued to manufacture, market, and distribute paint containing lead and failed to warn residents of the state and the state itself of the hazards.

Silverstein ruled that the attorney general has standing to sue on counts of public nuisance, civil conspiracy, unjust enrichment, indemnity, and violation of the Rhode Island Unfair Trade Practice and Consumer Protection Act. However, he upheld only those claims based on strict liability and negligence that alleged harm resulting from lead in public buildings. The attorney general has no cause of action based on claims of individual citizens, Silverstein held.

At the time of the ruling, the Rhode Island suit was the only one filed by a state attorney general against the paint industry. The defendants in the suit are the Lead Industries Association and eight manufacturers of lead pigment, including the Sherwin-Williams Co., the Glidden Co., E.I. duPont De Nemours & Co., and SCM Chemicals.

The city of Milwaukee filed suit against two paint companies shortly after the Rhode Island ruling was issued. This suit claims that Mautz Paint of Madison, Wisconsin, and NL Industries of Houston intentionally concealed their knowledge of lead paint hazards to maintain demand for the products. The city seeks unspecified compensatory and punitive damages. (City of Milwaukee v. NL Industries, Inc., PL Case Code 30100 (Wis., Milwaukee County Circuit Ct. filed April 4, 2001).)

Other suits have been filed by cities and counties, including one by Santa Clara County, California, on March 23, 2000, against the Lead Industries Association and eight lead pigment manufacturers. Several other California counties--including San Francisco, Oakland, Santa Cruz, Solano, and Alameda--have joined this suit. The cities of St. Louis and New York have cases pending.

Attorneys familiar with the litigation expect more suits in the wake of the Rhode Island ruling. Arthur Bryant of Oakland, California, cochair of ATLA's Lead Paint Litigation Group, called it "a harbinger."

"We expect more and more of these cases to be filed and more and more to succeed," said Bryant, who is also executive director of Trial Lawyers for Public Justice. "The lead industry has avoided accountability to this point because no one has been able to show exactly which paint was on which walls. But the time has come for justice to be done."