Verdict in Rhode Island Lead-Based Paint Litigation Could Cost Defendants $3.7 Billion
By
Matthew S. Frantzen
In February 2007 a Rhode Island jury found that three former lead-based paint manufacturers, Millennium Holdings, NL Industries, and Sherwin-Williams, were responsible for the creation of a public nuisance (the public health crisis caused by the presence of lead-based paint in residential dwellings and the costs incurred by local governments for the removal of lead paint) and should be solely responsible for its abatement. The jury did not award punitive damages and concluded that a fourth defendant, Atlantic Richfield Company, was not liable for the costs of abating lead-based paint because it did not contribute to the creation of the public nuisance. The State of Rhode Island has estimated that it could cost $3.7 billion to abate properties that have been contaminated by lead-based paint.
The three defendants have appealed the Rhode Island jury’s verdict because “the verdict does not stand up to the facts and departs from Rhode Island law.” Bonnie J. Campbell, a spokesperson for the defendants, stated, “the Court failed to take into account the fact that, by its own definition, Rhode Island has eliminated childhood lead poisoning as a problem in each of its 39 cities and towns. This is a notable feat involving a housing stock that is more than 200 years old.” Ms. Campbell also alleged that the Court committed “significant errors” throughout the litigation, including the fact that “the Judge did not require the State to show any wrongful conduct by the defendants.” As for the abatement process contemplated by the State, Ms. Campbell asserted that “[t]he trial record shows that a handful of landlords – certainly the owners of the properties most in need of remediation – are chronic law-breakers. In an equitable proceeding, the responsibility of the law-breaking owners must be considered.”
Decisions in at least three other large lead-based paint cases should be forthcoming in the not too distant future. A Wisconsin case, City of Milwaukee v. NL Indus., Inc., is scheduled to go to trial on May 23, 2007 and an appellate court in California recently reversed a trial court’s dismissal of the plaintiff’s claims in County of Santa Clara v. Atlantic Richfield Co., et al. The case that has the best potential to surpass the blockbuster damages projected in Rhode Island, In re Lead Paint Litigation, is still waiting for a decision from the New Jersey Supreme Court, which heard oral arguments on the case in the Spring of 2006. In re Lead Paint Litigation is an action brought on behalf of twenty six New Jersey governmental entities to recover the costs associated with detecting and removing lead-based paint, the provision of medical care to lead poisoned individuals, and educating the public about lead-based paint hazards. The plaintiffs asserted several claims, including public nuisance, and the trial court granted the defendants’ motion to dismiss on separation of powers and remoteness grounds. The intermediate appellate court reversed as to the public nuisance claim (and affirmed as to all other claims). The New Jersey Supreme Court’s decision is expected soon.
Although the final results of the Rhode Island, Wisconsin, California, and New Jersey litigation is still uncertain and may be several years away, public entity lead-based paint litigation is here to stay. In fact, and due in large part to the Rhode Island verdict, this brand of litigation continues to spread across the country.
The State of Ohio has become the most recent battleground in the fight over who should be responsible for the abatement of lead-based paint. The cities of Toledo, East Cleveland, Lancaster, Canton, and Cincinnati brought separate suits in late 2006 against Sherwin-Williams and other former lead-based paint manufacturers seeking the costs of abatement and health screening. The Ohio cities have asserted that their residents continue to suffer from health problems that have been directly caused by the lead-based paint still present in residential housing units. The State of Ohio added fuel to the fire by launching its own lawsuit in April 2007 against ten former lead-based paint manufacturers, distributors, and promoters.
Please contact Richard Lind or Matthew Frantzen at (612) 333-3637 with any questions or comments regarding lead-based paint litigation.
