Paint Makers’ Liability Setback in R.I. Offset by Wins in Other States

When Rhode Island won what could be a multibillion-dollar verdict against former lead paint manufacturers last year, advocates hoped the victory would trigger a wave of successful lawsuits against the industry.

But two recent court decisions in New Jersey and Missouri have sided with the manufacturers in a setback in efforts nationwide to force the companies to pay for the cleanup of homes contaminated with toxic lead paint.

“These cases certainly combine to take away any momentum that lead paint plaintiffs might otherwise have had,” said Howard Erichson, a law professor at Seton Hall University.

The New Jersey Supreme Court last Friday scuttled a lawsuit brought by 26 counties and towns. Three days earlier, the Missouri Supreme Court blocked a suit from the city of St. Louis that sought to recover cleanup costs from several former lead paint and pigment makers.

Meanwhile, paint manufacturers are appealing the landmark Rhode Island verdict, issued in February 2006, to the state Supreme Court. While the appeal is pending, the trial judge, assisted by a special master, is deciding how the companies — Sherwin-Williams Co., NL Industries, Inc. and Millennium Holdings LLC — should deal with the cleanup of contaminated properties. The process has been estimated by some to cost several billion dollars.

Legal experts expect the Rhode Island Supreme Court to be mindful of the rulings in the other states but say the justices have no obligation to take them into account.

“Obviously the lawyers for the state of Rhode Island are going to try to distinguish the New Jersey opinion, and the lawyers for the pigment companies are going to try to claim that they’re virtually identical situations,” said Donald Gifford, a law professor at the University of Maryland who has consulted for the paint companies and predicted that the New Jersey ruling, in particular, could have a “profound” effect on future cases.

Michael D. Green, a law professor at Wake Forest University, said the dual decisions might make local governments think twice before targeting former lead paint manufacturers.

The New Jersey and Missouri decisions hint at obstacles faced by government entities suing the companies. The federal government banned lead paint in homes in 1978, meaning the companies stopped manufacturing the product decades ago. It’s also difficult to identify which company’s product is inside any given home, a problem cited by the Missouri court in its opinion. And other parties, such as landlords who allow properties to deteriorate, can be subject to blame.

“These defendants neither own the property nor control the product that’s there,” said Bonnie Campbell, a spokeswoman for the companies and a former Iowa attorney general. “It’s just common sense that it’s way too attenuated.”

Campbell said she was confident that Rhode Island’s justices would reach the same conclusion as appellate courts in Missouri and New Jersey.

But Jack McConnell, an attorney representing Rhode Island, said he remained convinced the law was on the plaintiffs’ sides and that the recent decisions won’t have any relevance in Rhode Island, which in 1999 became the first state to sue the companies.

He noted that other cases are making their way through the court system, such as in Milwaukee, where a jury continued deliberating Wednesday in a case brought by the city against NL Industries. Ohio also sued several manufacturers in April.

“It’s a marathon,” McConnell said. “There’s going to be ups and downs until these folks are brought to justice.”

John F. Banzhaf III, a law professor at George Washington University, said it was premature to gauge the success of lead paint litigation given how much time it takes to put together legal theories, craft a complaint and bring it to the public’s attention.

“The law moves very slowly from a layman’s point of view,” Banzhaf said.