Taking a page from state lawsuits against tobacco companies, Rhode Island sued former makers of lead paint to recover public costs of providing health care and special education to children harmed by lead poisoning.
The suit, filed in state court in Providence late Tuesday, also seeks a court order requiring the industry to strip all lead paint from public and private buildings in Rhode Island accessible to children. While lead paint is no longer made, the cost of removing old paint is estimated to be hundreds of millions of dollars in Rhode Island alone.
Law Firm in Smoking Suits
The lawsuit is the first in what could become a wave of similar actions filed by states, counties and cities nationwide. Rhode Island is being represented by Ness, Motley, Loadholt, Richardson & Poole, a Charleston, S.C., plaintiffs law firm that was pivotal in rounding up states to sue tobacco companies. It is now in discussions with four states and three major cities about representing them in lead-paint suits, according to Ronald Motley, who heads the firm.
Ness Motley, which reaped hundreds of millions of dollars in fees representing states against tobacco companies, is financing Rhode Island's suit in return for a 17% share of any recovery it wins for the state. Rhode Island Attorney General Sheldon Whitehouse, who is scheduled to announce the suit at a press conference Wednesday in Pawtucket, declined to comment.
Broad Brush
Targets in lead paint suit:
- Atlantic Richfield
- DuPont
- Sherwin-Williams
- NL Industries
- Glidden, a unit of Imperial Chemical Industries PLC of England
The suit alleges that eight companies that made lead paint, or acquired manufacturers that did, and Lead Industries Association Inc., the industry's trade group and lobbying arm in Sparta, N.J., conspired to promote lead paint while failing to disclose the danger it posed to children. Lead paint was banned by the federal government in 1978, though manufacturers stopped using lead in interior paint in the 1950s.
Major defendants include Atlantic Richfield Co. of Los Angeles; DuPont Co. of Wilmington, Del.; Sherwin-Williams Co. of Cleveland; and NL Industries Inc. of Houston. Also named were Glidden Co., a unit of Imperial Chemical Industries PLC in England; O'Brien Corp., which was bought by ICI; and SCM Chemicals Inc. and American Cyanamid Co., whose paint liabilities were assumed by Cytec Industries Inc. of West Paterson, N.J.
Past Rulings Backed Industry
A spokesman for Lead Industries said that similar claims alleging an industrywide conspiracy to hide the dangers of lead-paint exposure have been rejected by courts in the past, most notably in a decision by a Maryland intermediate appeals court in 1997. That decision, involving a suit brought by the parents of two brothers with mental disorders that they attributed to exposure to lead paint, found that the hazards of lead paint had been widely publicized with warning labels and industry campaigns to discourage its use inside homes.
A DuPont spokeswoman said the company has always marketed its paint in "a safe and responsible manner." A Glidden spokesman said he hadn't seen the complaint, but noted that the allegations involve paint that hasn't been sold in the U.S. in decades. A spokesman for Cytec Industries declined to comment.
"This is the story of an industry that investigated and publicized the hazards of its product and took appropriate action to protect the public," said Timothy S. Hardy, a lawyer for NL Industries in the Washington office of Kirkland & Ellis. "It is not the story of an industry that hid anything or conspired to hide anything," he said.
But Rhode Island's complaint alleges that lead-paint makers knew since the early 1900s that lead paint was poisonous, and that children were particularly vulnerable. Lead-paint chips are as sweet as candy, though most exposure now results from inhaling dust and particles, said Mr. Motley.
Moreover, Rhode Island's lead-paint claim, like the tobacco suits before it, alleges a more generalized harm to the state from the environmental hazard of lead paint, rather than specific injuries to individuals, said Mr. Motley. That, he said, should be easier to prove. The tobacco industry, facing similar allegations in lawsuits brought by states, settled for $246 billion, to be paid over 25 years.
Other Suits in Works
Companies that made lead paint are no strangers to lawsuits, and a new round of litigation was heating up even before Rhode Island sued. Last month, Baltimore Orioles owner Peter Angelos, who like Mr. Motley has made millions suing the asbestos and tobacco industries, filed two lawsuits against paint makers to force the removal of paint from one million Maryland homes and payment of damages to six Baltimore children. Similar suits against paint makers have also been simmering in Cleveland, New York and Buffalo, N.Y.
But past suits have been successful only against owners of specific buildings. Paint manufacturers have escaped liability because plaintiffs have had trouble proving which company was responsible for their injuries or the degree to which lead from paint may have been a factor. Brands of lead paint are virtually indistinguishable from others, and several different coats -- each microscopically thin and made by a different company -- may cover the same wall.
Moreover, many healthy Americans have some lead in their blood, sometimes in amounts exceeding standards set by the Centers for Disease Control. There are other sources of exposure to lead, including leaded gasoline made before that was banned, and water from lead pipes.
Personal-injury lawyers have sought to assign damages to paint companies according to the share of the market, a theory that was widely tested during the 1980s, but that most courts rejected.
However, as with other suits brought on behalf of government entities, Rhode Island is attempting to bypass many of those hurdles by arguing that the state is owed damages. In addition to forcing the removal of lead paint from private and public buildings, Rhode Island is also seeking unspecified damages to fund a massive public-education campaign about the dangers of continued exposure to lead paint.
--Philip Connors contributed to this article.
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