N.J. High Court Stifles Suit Against Lead Paint Makers

The New Jersey Supreme Court has scuttled what little remained of a lawsuit against paint makers by 26 towns and counties that wanted them to cover the cost of removing lead paint, which was banned in 1978 as a health hazard.

The 4-2 ruling by the state’s highest court last Friday was a victory for the manufacturers, which included American Cyanamid Co. (now part of Wyeth), Sherwin-Williams Co. and DuPont.

The court determined that the towns and counties failed to identify a special injury that could be compensated. It said the claim was essentially a products liability issue, and falls under the state Product Liability Act, which excludes coverage for exposure to toxic material.

A lawyer for the towns and counties, Fidelma L. Fitzpatrick, said they were considering whether to ask the court to reconsider its decision, which dismissed the last remaining claim of the lawsuit.

“It means that the New Jersey Supreme Court turned its back on lead-poisoned children of New Jersey, and they allowed the companies that profited from lead paint to turn their back on the children of New Jersey and the crisis that they created,” Fitzpatrick said.

Individuals have little recourse to sue because they cannot identify which manufacturer made the paint that is on the walls of their home, Fitzpatrick said.

The paint makers praised the ruling, noting the Missouri Supreme Court had a similar decision last Tuesday.

“These companies are not responsible for risks today from poorly maintained lead paint,” said Bonnie J. Campbell, spokeswoman for the paint makers and a former attorney general of Iowa.

New Jersey Public Advocate Ronald K. Chen, who had entered the case in support of the towns and counties, said the ruling was disappointing, but did recognize that landlords must maintain their properties to prevent lead paint from flaking and becoming a health hazard.

The aged housing stock in New Jersey has at least 2 million units with lead paint, Chen said. As a result, 4,048, or 2.4 percent of New Jersey children under 6, had high levels of lead, compared to 1.6 percent nationally, according to the state Department of Health and Senior Services.

The lawsuit was originally filed in December 2001 by Newark, and was later joined by other towns and counties.

A trial judge had dismissed the entire lawsuit, but an appellate panel reinstated the claim charging the manufacturers with creating a public nuisance.

On Tuesday, the Missouri Supreme Court ruled, 4-3, against St. Louis over who should pay to clean up lead paint in homes, upholding a lower court’s finding that the city could not proceed with a lawsuit against makers of lead paint.

The city sought to calculate damages based upon a company’s market share. But Missouri’s highest court found that court precedent requires the suing party, government entity or not, to identify the maker of a product it claims has caused harm.

In 2005, the Illinois Supreme Court denied Chicago’s bid to appeal an appellate ruling that ended that city’s public nuisance lawsuit.

Bucking the trend, a state jury in Rhode Island in February 2006 found Sherwin-Williams, Millennium Holdings LLC and NL Industries Inc. liable for creating a public nuisance by manufacturing and selling lead paint. The verdict has been appealed to the Rhode Island Supreme Court.

Ohio’s attorney general sued 10 paint manufacturers and chemical companies, including Sherwin-Williams and DuPont in April.

The federal government banned lead paint in 1978, but it’s still present in older buildings. Lead in the bloodstream can cause neurological damage and learning disabilities, especially in children.

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On the Net:

Court opinion:
http://www.judiciary.state.nj.us/opinions/supreme/A-73-05.pdf