Toxic lawyers threaten health;
Paint lawsuits may help keep the lead in
By Kenneth Smith
Copyright 1999 Washington Times
November 18, 1999
When a Baltimore couple discovered their two sons had elevated blood levels of
lead, they knew just who to blame for the boys' health problems: the lead paint
industry. Not only did the industry provide the children with a deadly bounty
in paint chips to ingest, the family charged in a lawsuit, it conspired to
squelch information about the dangers of lead paint and to promote its
continued use.
But when the courts stripped the case down to its bare essentials, there was
almost nothing left of it. It turned out that not only was there little or no
evidence of flaking paint in the family's house, the boys' mother acknowledged
she had never actually seen them eat paint chips. The plaintiffs had to admit
they had seen warnings about lead content on the paint cans themselves. And
the judge hearing the case ruled there was
"no evidence whatsoever" that the
Lead Industries Association (LIA)
"concealed any studies, altered any documents or misrepresented any finding." End of conspiracy. End of case.
But the facts in such cases may not be enough to protect the industry from a
looming legal assault from trial lawyers armed with billions of dollars from
tobacco settlements and an apparently insatiable appetite for more. All that
money means the lawyers are in less danger of going bankrupt in search of their
next litigation fix.
Ron Motley, a South Carolina trial lawyer who turned tobacco into his own cash
crop, already has filed suit against the lead paint industry on behalf of Rhode
Island and promises more to come.
"If I don't bring the entire lead industry to its knees within three years," he told a reporter from the Dallas Morning News last month,
"I will give them my boat." He can always afford to buy another 120-foot yacht.
The health risks of
lead are hardly unknown. In Roman times, Pliny the Elder cited lead poisoning
among
"the diseases of slaves." There are references to it in medical literature in this country that date to
the 1840s. In Baltimore a century later, city officials faced with an increase
in cases of childhood lead poisoning attributed the problem to peeling paint in
houses that had been poorly maintained.
Not everyone got the word. A 1955 Agriculture Department handbook cited
"the outstanding merits of pure white lead paint" because of its resistance to adverse weather conditions and tolerance for
irregular maintenance. It wasn't until 1970 that the feds actually got around
to banning its use. Interestingly no one seems much interested in trying to
bring a case against the government for its negligence regarding lead paint.
There are numerous ironies here, not the
least of which is that it was the industry which funded research into the
dangers of lead paint and helped publicize the findings. Following up on the
concerns of Baltimore officials, paint manufacturers sponsored research into
the problem at Johns Hopkins and Harvard, then traveled the country alerting
health officials to the risks that had been discovered. They also voluntarily
recommended the termination of marketing of interior lead paint in the
mid-1950s.
In a 1966 article on lead toxicity in a peer-reviewed journal, a researcher
praised an LIA official named Manfred Bowditch both for his
"support of distinguished research" and his
"enthusiasm for dissemination of knowledge." This seems a novel way to run a conspiracy to hide the dangers of lead paint.
Another irony of Mr. Motley's suits is that there is very good news regarding
efforts to prevent lead poisoning. Cases in which children actually
show symptoms of lead poisoning have virtually disappeared and blood-lead
levels have come down sharply. Writing in the Journal of the American Medical
Association in 1994, researchers found that in groups surveyed over a 15-year
period ending in 1991, mean blood-lead levels in persons ages 1 to 74 had
fallen 78 percent. Mean blood-lead levels in children ages 1 to 5 had fallen
77 percent.
There are isolated cases in low-income urban areas that health officials must
still resolve, but most cases of lead poisoning disappeared with the phaseout
of lead from gasoline and other consumer products. The remaining scientific
controversy is about the effects of low-level exposure to lead and how to abate
the problem.
Does one, for example, insist on mandatory screenings
for all children? If so, that may distract attention from the relatively small
subset of inner-city children who may face real risks. Should one attempt to
remove existing lead-based paint that appears to be intact and well-maintained?
A study of New York children found that home renovation and remodeling
involving lead paint turned out to be an important source of lead exposure to
children. The best thing to do with lead may be to leave it alone. Otherwise
encourage children not to eat dirt or paint chips that may have trace amounts
of lead, have them wash their hands before eating. It's fairly commonsensical
stuff that doesn't require a major lawsuit.
Notwithstanding the industry's record on lead paint or the fact that industry
management today had nothing to do with decades-old practices that the federal
government itself encouraged at the
time, paint manufacturers may face a number of lawsuits on the issue before
it's over.
The problem for the plaintiffs' bar was that it was hard to blame a particular
company for exposure to lead paint was that lawyers had no way of knowing just
which company made the paint that allegedly sickened their clients or when
someone put it on the walls. In the almost 50 years since companies stopped
making lead-based paints, a lot of companies have come and gone. Trial lawyers
couldn't be sure they were suing a company that was even in business when the
paint went on.
So what they are trying to argue now is that courts should apportion damages
based on manufacturers' shares of the lead-paint market. It doesn't answer the
question of which company is
"guilty." It asks the court simply to assume all the companies are guilty.
Faced with the prospect of defending itself in multiple courts at the same
time, the industry could end up going to the bargaining table to avoid the
sheer cost of the litigation. Mr. Motley may get another boat out of it, but
if he keeps people from focusing on what genuine lead risks to children remain,
he could cost families something far more precious.
Kenneth
Smith is deputy editor of The
Washington Times editorial page.
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