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R.I. Lead Paint Verdict Deters Other Lawsuits

Federal ruling last week indicated the difficulty in successfully suing the industry, and other states could be less inclined to take up a costly court fight with uncertain prospects of victory.

PROVIDENCE, R.I. (AP) -- Communities and child health advocates around the country had pinned their hopes on Rhode Island prevailing in its landmark lawsuit against the lead paint industry.

Now, after the state Supreme Court threw out the first-ever jury verdict finding former lead paint companies liable for creating a public nuisance, at least one city says it's rethinking a similar lawsuit against the industry, and one of the lawyers in the Rhode Island case predicted the decision would have a "devastating" effect on national efforts to hold the manufacturers accountable for their products. Still, other lawyers with pending cases say they're not deterred.

"There's no question about it, that the Supreme Court of Rhode Island has stopped any progress nationally to get justice for lead-poisoned kids," said Jack McConnell, a lawyer who represented the state and is involved in other lawsuits over lead paint. "It has a devastating effect on progress nationwide."

The 2006 verdict against Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC had been the only victory against the industry. It gave advocates hope for future success even though courts around the country have more recently rejected similar suits against the companies.

But the Supreme Court's opinion last week seemed to underscore the difficulty in successfully suing the industry, and other states and communities tracking Rhode Island's case could be less inclined to take up a costly court fight with uncertain prospects of victory.

"I think very clearly most of those people are going to be discouraged by it, and they'll wait and see if anyone else breaks through before they stick their necks out," said Ralph Scott, community projects director at the Alliance for Healthy Homes, a Washington advocacy group.

In Ohio, Columbus City Attorney Richard Pfeiffer Jr. said the city was rethinking its lawsuit. Last year, several other Ohio cities voluntarily withdrew separate suits against the industry.

"I think it's fair to say that most us were counting on Rhode Island as a bellwether," Pfeiffer said. "The way the bell rung indicates to us that we need to rethink whether it's worth going forward."

Other cases, however, are moving forward.

A spokesman for the attorney general's office in Ohio -- the only other state that has sued -- said last week that its lawsuit would continue.

In California, Santa Clara County Counsel Ann Ravel, who is suing on behalf of cities, counties and school districts, said her case will not be directly affected by the Rhode Island decision because it involves some different legal issues. That case is on hold pending an appeal of the plaintiffs' contingency fee arrangement with private lawyers hired to try the case.

"My assessment is that while the Rhode Island decision is disappointing, our case is based on California law," Ravel said. "Our court does not have to follow the reasoning of that court in its determination."

Lead paint was banned from residential use in the United States in 1978, and studies have shown children who ingest flaking chips or dust can suffer health problems including reduced intelligence, brain damage and even death.

But the toxic substance has proved a tough target for plaintiffs lawyers, in part because it was made decades ago and because it's essentially impossible to prove which company's product is responsible for poisoning an individual child or contaminating a specific home. The companies also argue that lead pigment was legal when they made it and say they are less responsible than landlords who put their tenants at risk by allowing their properties to deteriorate.

The highest courts in New Jersey and Missouri rejected public nuisance lawsuits against the industry last year. Suits have also failed in New York and Illinois. A jury trial in Milwaukee last year ended in favor of NL Industries.

Last Tuesday, Rhode Island's Supreme Court ruled that the companies, which each made lead pigment used in paint, could not be held liable since they did not have control of their product after they sold it.

The companies called the Rhode Island decision a "victory for common sense" and said they should have never been found liable since there was no proof they had done anything wrong.

In dismissing the case, the court eliminated the state's proposed $2.4 billion cleanup of roughly 240,000 older homes, which would have been funded by the companies.

"There is no doubt that what the Rhode Island Supreme Court did this week is to seriously squelch any justice coming from these wrongdoers," said McConnell, the lawyer for the state. "We were on the cusp of finally once and for all resolving the lead poisoning problem in this state."

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