January 22, 2003 - Rhode Island Court Dispute over Lead Paint Responsibility Continues

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Jan. 22--Lawyers representing the state attorney general's office asked a Superior Court judge yesterday to declare that they had won their lawsuit charging that the nation's paint companies created a public nuisance decades ago when they made and marketed lead-based paints.

A lawyer for the paint companies disagreed, arguing that the state's case directly contradicted standards established by the Rhode Island General Assembly and the state health department.

Judge Michael A. Silverstein listened to arguments all day yesterday, and said he would rule later. At one point he said he was troubled by the position the two sides put him in.

"The plaintiffs tell the court it has this remarkable opportunity and responsibility. But the defendants tell the court it would be unprecedented for the court to usurp the power of the jury," Silverstein said.

Both sides were attempting to get a definitive resolution to the case following a mistrial that was declared two months ago when a six-person jury failed to reach a unanimous verdict following seven weeks of testimony. Two jurors sided with the state; four sided with the paint companies.

The arguments presented to Silverstein yesterday were based on several hundred pages of legal briefs filed after the mistrial.

Lawyer Leonard Decof, representing the state, argued that any reasonable jury would agree that lead-based paints have created a public nuisance in Rhode Island. Children suffer irreversible brain damage when they ingest even tiny amounts of dust from such paints.

Because of the danger, 176,587 Rhode Island children have been screened for lead poisoning in the last nine years, Decof said. The screening itself is a burden that's evidence of a public nuisance.

What's more, said lawyer Fidelma Fitzpatrick, also arguing for the state, thousands of children in Rhode Island have been poisoned.

She said Rhode Island courts have found that truck noise can constitute a public nuisance. They have declared bad odors a public nuisance.

"If a smell can be a public nuisance, then brain damage clearly falls within that area too," she said.

"The bottom line is that from the facts which were undisputed and even admitted by the defendants, no reasonable jury would fail to find it was a public nuisance," Decof said.

Lawyer John Tarantino, representing the paint companies, said the state's case is flawed because it contradicts findings of the General Assembly and the state health department.

Both the legislature and the health department have created policies to encourage "lead-safe" housing -- houses where the toxic lead paint is encased in latex paints or otherwise kept from contact with children.

Nearly every witness presented by former Atty. Gen. Sheldon Whitehouse testified that lead paint, even when covered with latex paint, always has the potential to poison children.

But the attorney general doesn't have the right to set health standards in Rhode Island by filing lawsuits, Tarantino asserted.

"Doesn't he have the right to let the court decide?" Silverstein asked.

Yes, said Tarantino, but not in a vacuum. If the legislature decriminalized some form of behavior, the attorney general couldn't keep arresting people on that charge, he said.

"The legislature is charged with making the law," Tarantino said. "The attorney general is charged with enforcing the law. It's not his job to say, "No, I don't like it. This lawsuit is in head-to-head conflict with the statute and for that reason we're entitled (to have it dismissed)."

Fitzpatrick disagreed. Both the 1991 and the 2002 lead-paint bills expressly said they would not limit any other state law or power.

"The statutes deal with landlords and homeowners and minimal levels of safety," she said. "They don't address the potential liability facing manufacturers."

Late in the trial, the paint-company lawyers told the jury they were shocked to learn that some of the 35,000 Rhode Island children the state said were poisoned by lead were diagnosed improperly.

Yesterday, lawyers for the state argued that the defense had the health department's data base for months and were well aware that it was created using two different types of tests on children.

"Defendants were not deprived of the opportunity or ability to analyze this data and determine for themselves some `actual number' or to test the credibility of the state's position or the opinions offered by the state's experts," argued lawyer Neil Leifer. "Defendants' decision not to pursue that type of cross-examination was a tactical decision and not one driven by lack of information provided by the state."

The defendants are Lead Industries Asssociation, American Cyanamid Co., Atlantic Richfield Co., E.I. Dupont De Nemours and Co., The O'Brien Corp., Cytec Industries, NL Industries Inc., Milennium Inorganic Chemicals, and Sherwin-Williams Co.

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