Lead Paint Firms Must Cover Own Costs in Rhode Island Suit

Three companies that sold lead-based paint and were sued by the state in a landmark case cannot recover money they spent defending themselves in the lawsuit, a judge has ruled.

Rhode Island in February 2006 won a jury verdict that could have forced the three companies, including the Cleveland-based Sherwin-Williams Co., to spend billions of dollars removing lead paint from homes and buildings in the state.

The state Supreme Court threw out the verdict in 2008, and the companies asked for the state to reimburse them for legal expenses.

But Superior Court Judge Michael Silverstein denied that request, saying the lawsuit was brought in good faith and focused public attention on problems associated with lead-based paint, which can cause reduced intelligence and even brain damage in children who ingest flakes or dust from it and was banned for U.S. residential use in 1978. The judge said ordering the companies to be reimbursed could deter the state from bringing public health lawsuits in the future.

The expenses include the costs of depositions, expert witnesses, trial transcripts and copying documents, but they don’t apply to lawyers’ fees. The companies, which also include Dallas-based NL Industries Inc. and Millennium Holdings LLC, have not said how much they spent on the case, though the state earlier submitted a bill for $1.9 million.

State law allows the winning side of a lawsuit to recoup costs, though at the judge’s discretion.

Attorney General Patrick Lynch called the judge’s decision “courageous” and said the companies’ request for reimbursement was about more than just costs.

“It was meant to intimidate and silence any attorney or jurisdiction that would dare to demand that they be accountable for the products they put into the marketplace,” Lynch said in a written statement.

Sherwin-Williams attorney Charles Moellenberg said the company will appeal the judge’s decision to the state Supreme Court.

The company believes the state attorney general, “just like every other losing party, is responsible to pay litigation costs, not including legal fees, when he chooses to sue,” Moellenberg said. “That’s especially true when the state Supreme Court said that the attorney general’s lawsuit should have been dismissed at the outset nine years ago.”

Lawyers for Millennium Holdings and NL Industries did not immediately return phone messages.

Attorney Fidelma Fitzpatrick, who represented the state, said the judge’s ruling validated the lawsuit, even though it was ultimately unsuccessful.

“The entire purpose of this lawsuit was to protect children from lead poisoning and to ensure that kids didn’t end up with these terrible repercussions of lead poisoning,” she said.

Rhode Island in 1999 became the first state to sue former lead paint manufacturers. It also is the only state to win a jury verdict against the companies.