Former Lead Paint Companies Argue Case Verdict

Three former lead paint companies are appealing in the Rhode Island Supreme Court a verdict that found them liable for toxic products in the first-ever jury ruling against the industry.

PROVIDENCE, R.I. (AP) -- Three former lead paint companies found liable for creating a public nuisance argued to the state's highest court on Thursday that the verdict should be overturned because the state never proved the toxic products they made ended up in the homes of Rhode Islanders.

Cleveland-based Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC are appealing a 2006 verdict that found them liable in the first-ever jury ruling against the industry. The state has proposed the companies pay for an estimated $2.4 billion cleanup of hundreds of thousands of Rhode Island homes believed to contain lead paint.

Industry lawyers told the state Supreme Court they were being held responsible for a product that was pulled off the market decades ago, and that state law already holds landlords and homeowners responsible for cleaning up lead paint. They said the state was allowed to argue the overall presence of lead paint in homes creates a public nuisance without identifying any of the company's products in particular homes.

''That one concept is responsible for getting the train off the track in many respects,'' said William Kayatta, a lawyer for Millennium Holdings. ''Because once you accept that, you're not dealing with reality.''

Jack McConnell, a lawyer for the state, said the state did not have to prove a direct link between any specific property and a company's paint. But he said the state did show the companies had aggressively marketed and sold their lead products across the country, including in Rhode Island.

The Supreme Court expects to rule by July.

Lead paint was banned for residential uses in 1978 because children who eat paint chips or inhale lead paint dust can develop learning disabilities or brain damage.

The justices challenged state lawyers on whether the companies should be held responsible for problems that occur well after their product has been sold, including a negligent landlord who allows the paint to deteriorate and endanger tenants.

''Didn't the evidence show that as time went on, a lot of this harm was caused by the degrading of properties, the flaking of properties, dust over time? That's where the nuisance came in, isn't it?'' Justice Francis Flaherty asked.

Justice William Robinson said he wondered if the companies' role in the problem was too far removed from the conditions in homes today.

But lawyers for the state argued the companies, which manufactured toxic lead pigment that was used in paint to make it last longer, had created the problem and were the only links in the chain that had done nothing to solve it -- unlike homeowners, landlords, taxpayers and government. The state says tens of thousands of children have been poisoned by lead in the last decade and that at least 240,000 homes in Rhode Island contain lead paint.

''Lead is a public nuisance because it has created a widespread, continuing and persistent health hazard in the state of Rhode Island,'' said attorney Fidelma Fitzpatrick. ''That threat will continue until lead is abated.''

Rhode Island in 1999 became the first state to sue the industry.

The state says its $2.4 billion cleanup plan, currently being challenged separately by the companies, calls for removing or permanently enclosing building components tainted by lead from about 240,000 homes built before 1980. The plan is being reviewed by outside public health experts, who will recommend to the court how to clean up the problem.

Mickey Pohl, a lawyer for Sherwin-Williams, said the attorney general's office and the General Assembly were ''at war'' over how to deal with lead paint, especially since state laws hold landlords responsible for maintaining their properties.

''Here we have people who should be taking care of their properties thinking that, 'Why maintain my property under the state statute when somebody else is going to come in and clean it up?''' Pohl said. ''Enforcement is being neglected.''

The court also heard arguments Thursday on the judge's decision to bar the state from seeking compensatory damages, a contingency-fee agreement between the state and a private law firm hired to try the case, and contempt orders and fines issued against the state attorney general for public comments he made about the case while it was pending.

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