Current Events   A HISTORIC EVENT IN RHODE ISLAND: Jury holds 3 ex-makers of lead paint liable Providence Journal, 2/22/06 PROVIDENCE -- A jury has decided that three former makers of lead paint created a public nuisance that has poisoned thousands of Rhode Island children, and continues to do so. In a highly anticipated verdict announced shortly before noon today, the three companies found responsible are Sherwin-Williams, N-L Industries and Millennium Holdings. The jury found that one of the four companies named in the landmark suit brought by the state -- Atlantic Richfield -- was not responsible. The verdict means the companies that once made lead paint and pigment could be held responsible for millions of dollars in clean-up and mitigation costs -- though the state never put a dollar value on its lawsuit. The jury's decision is also important because it could affect similar lawsuits in other states. The sale of lead paint was banned in 1978 in the United States, after studies showed that it can cause serious health problems in children. But in Rhode Island, which has an old housing stock, lead paint still exists in many homes. In 1999, Rhode Island became the first state to sue the lead paint industry. "This is sweet. I am overjoyed," said the state's former attorney general, Sheldon Whitehouse, who brought the original lawsuit that ended with a hung jury in 2002. Whitehouse, a candidate for Congress, said today's verdict was especially dramatic because the jury first announced the "not responsible" finding for Atlantic Richfield. Current Attorney General Patrick C. Lynch hailed the verdict as historic and said in a statement that the decision would "help make Rhode Island a safer and better place to live." Bonnie Campbell, a spokeswoman for the companies and a former attorney general of Iowa, said, "This is but one step in a lengthy process and there are a number of issues still to be decided by the court." Although the jury said that the three other companies must be held responsible for abatement -- or repairing damages -- they did not award compensatory damages. Because of that, Superior Court Judge Michael Silverstein ordered lawyers to report back to court Monday with their arguments on whether punitive damages should be awarded. If Silverstein decides they should, the jury will return Tuesday to begin deliberating what those damages should be. The case went to the six-person jury Monday, Feb. 13, after 15 weeks of trial. The state contended that the four companies created a public nuisance by marketing the lead-paint pigments that helped poison more than 37,000 Rhode Island children during the last 11 years. The state also argued the paints remain on more than 240,000 houses and threaten future harm as they deteriorate. Attorney General Lynch has estimated abatement could cost billions of dollars. The verdicts had an immediate impact on Wall Street. Sherwin Williams' share price dropped more than 15 percent to $44.47 as of about 1:30 p.m. NL Industries fell 5 percent to $13.64. The 2002 trial ended in a hung jury after four days of deliberations. State's lawyers presented historians, doctors and contractors to try to persuade jurors that the companies knew about the hazards and tried to hide them. The paint makers presented no witnesses. In closing arguments, company lawyers insisted that the state didn't prove a case against any of them. They said the state failed to convincingly place any of their paints on Rhode Island buildings and that there is no public nuisance in Rhode Island because childhood blood-lead levels have declined so dramatically. In closing arguments, defendants argued that the entire time they sold lead-based paints it was legal, but Judge Silverstein swept aside that defense. "The fact that the conduct which caused the nuisance is lawful, does not preclude liability," Silverstein said. A large part of the state's evidence focused on an industry group called the Lead Industries Association that heavily promoted the use of lead paint while campaigning to cover up reports of lead-poisoned children. Silverstein reinforced a previous ruling he made that favored the defendants by telling the jury that "mere membership in a trade association is not sufficient to impose liability on any defendant." -- With reports from the Associated Press and Journal staff writers Paul Edward Parker and Peter B. Lord ***************************** Lead-paint protesters disrupt meeting Monday, October 24, 2005 Jesse Tinsley Plain Dealer Reporter (Cleveland) A noisy group of more than 400 activists crashed a staid business meeting of national paint-industry executives Sunday at the Renaissance Cleveland Hotel, demanding accountability for decades of lead paint sales. The National Paint & Coatings Association was caught off guard when members of ACORN - the Association of Community Organizations for Reform Now - squeezed into the third-floor meeting room on Public Square armed with a half-dozen bullhorns. After raising a racket that put the meeting on hold, the crowd departed when J. Andrew Doyle, the paint association president, agreed to speak with a small group of ACORN leaders. Doyle went to a side room and signed a written agreement to meet in Washington, D.C., with leaders of the protest group within 30 days to listen to their concerns about lead paint. His signature, however, hinged on the condition the ACORN members - who clogged the hotel's lobby - refrain from further disruptions of the paint association's annual meeting. Visibly disturbed, Doyle told the protesters, some of whom traveled from as far away as the nation's capital, that they could have made their point in a better way. Doyle said he was vaguely aware of ACORN, a national community organization of low- and moderate-income families that works on social justice issues such as better housing and health care. Marcel Reid, president of D.C. ACORN, said she and other members were pleased with the turnout and Doyle's agreement to meet with the group's leaders. As it happened, discussion about lead paint was already on the paint association's agenda. After the agreement, ACORN members carrying banners, placards and bullhorns marched from Public Square to a Sherwin-Williams Co. office on nearby Prospect Avenue for a brief protest. Although the office was closed, the activists shouted, "We are ACORN, mighty, mighty ACORN!" and waved banners that said, "They Knew for Decades" about the health problems associated with lead paint. The group claims paint companies continued to sell lead-based paint after learning it posed serious health risks to children, such as lead poisoning. *********** NJ Appeals Court Permits Lawsuit by Cities The Star-Ledger Court renews towns' suit against lead paint makers Thursday, August 18, 2005 BY ROBERT SCHWANEBERG Star-Ledger Staff A state appeals court yesterday revived a lawsuit aimed at forcing companies that made lead paint to bear the enormous costs of removing it from the walls of homes and apartments and treating lead-poisoned residents in 22 municipalities and four counties. A Middlesex County judge had dismissed the lawsuit almost three years ago, saying the local governments had overstepped their authority in bringing it. The three-judge appeals panel disagreed and ruled that Newark, the counties of Essex and Union and the other governmental bodies have "inherent police powers" to sue to stop a public nuisance, such as a health threat. Lead poisoning, particularly in children, can cause neurological, developmental and other health problems. Lead paint has been banned in New Jersey since 1971 and nationwide since 1978. Chris Perrucci, a lawyer for seven of the local governments that went to court, said: "We're very pleased that this matter will at least have the opportunity to go to a jury." At trial, he said, the towns will argue that "the paint industry was aware that their product was harmful to small children but did not reveal this known danger to consumers." In that respect, the case is similar to earlier lawsuits against the asbestos and tobacco industries, said Perrucci, whose law firm has offices in Phillipsburg and in Bethlehem, Pa. Bonnie Campbell, a spokeswoman for four of the companies being sued, said yesterday's ruling was "truly a preliminary, procedural step. All it does is send us back to the lower court." She said the defendants have "many procedural options available" before the case would go to trial and will "vigorously defend against plaintiffs' claim." The lawsuit is one of scores that have been filed by governments nationwide. So far, they have had at best modest success. Many were dismissed by trial judges and are "in limbo right now" as appeals courts consider them, according to Brian Gumm, a spokesman for the Alliance for Healthy Homes in Washington, D.C., which tracks such litigation. A lawsuit by Rhode Island against lead paint manufacturers ended in 2002 with a hung jury. Last June, Rhode Island Attorney General Patrick Lynch dropped DuPont Corp. as a defendant after it agreed to make a "multimillion-dollar contribution" to a nonprofit group that works to protect children from exposure to lead. A retrial of the remaining defendants is scheduled for October, Gumm said. The Wisconsin Supreme Court ruled 4-2 last month that a Milwaukee teenager can sue lead paint manufacturers even though he cannot identify the company whose paint he claims poisoned him as a child. *********** Jul 15, 2005 Court allows teen to sue lead paint pigment makers for his injuries By JR ROSS Associated Press Writer MADISON, Wis. (AP) -- A Milwaukee boy can sue the manufacturers of a lead paint pigment for his injuries even though he cannot prove which ones made the pigment that may have sickened him, a split Wisconsin Supreme Court ruled Friday. It is the first time a state has found manufacturers could be held liable in such a lawsuit, and one of the dissenting judges said it would make Wisconsin "the mecca for lead paint suits." Still, the court's 4-2 ruling allows 15-year-old Steven Thomas to continue with his lawsuit against companies that made the pigment. Thomas claims as a toddler he ingested lead paint at two homes built in 1900 and 1905, leading to permanent mild retardation. Defendants include the Sherwin-Williams Co., ConAgra Grocery Products Co., American Cyanamid Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries Inc. and SCM Chemicals Inc.   Thomas's attorney, Peter Earle, said the manufacturers had long known the dangers of the pigment but continued to put the product on the market anyway. "Because they share culpability for creating this hazard to the public, they now have to account for that," Earle said. The court extended the "risk contribution theory" to the manufacturers of white lead carbonate, a pigment once commonly used in lead paint. According to that principle, those who cannot trace their injuries to a specific company can still collect damages if they can prove a product was dangerous, it created their injuries and the defendant negligently produced or marketed it. The court also ruled Thomas could sue the manufacturers even though he already received more than $324,000 from the landlords of the two homes where he believed he was sickened. But it rejected his claims the companies conspired to market the product to the public despite the dangers. Bonnie Campbell, spokeswoman for Atlantic Richfield, Sherwin-Williams, NL Industries and SCM Chemicals' successor Millennium, said the court's decision undermined laws passed by the Wisconsin Legislature making property owners responsible for lead paint hazards. "Those who put children at risk by not maintaining their properties are responsible and should be held accountable," said Campbell, a former Iowa attorney general. Attorneys representing Thomas and the other paint companies did not immediately return calls Friday from The Associated Press seeking comment. In his dissent, Justice Jon Wilcox wrote the decision raises serious concerns about fundamental fairness because it creates the possibility some defendants may be held liable for injuries they did not and could not have caused. He wrote the paint manufacturers "can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market." But Justice Louis Butler wrote the manufacturers long knew of the dangers, pointing to a 1904 article in a Sherwin-Williams publication publicizing the hazards. He wrote the record shows at a minimum the manufacturers are culpable for contributing to the creation of risk and injury to the public. The manufacturers "are essentially arguing that their negligent conduct should be excused because they got away with it for too long," Butler wrote. ********** The Lead Poisoning Problem is Not Going Away Any Time Soon > September 13, 2003 New York Times > The Plague of Lead Poisoning The federal goal to eliminate lead poisoning in children by 2010 seemed achievable when it was set in 1991. With bans on leaded gasoline and paint in place, progress has been made - the number of cases detected has fallen by 50 percent. Still, hundreds of thousands of small children, most of them black, Hispanic and Asian, face one of the most preventable environmental hazards in the nation by simply breathing inside their homes. > Tests have shown that more than 400,000 children 1 to 5 years old have blood  lead levels above that considered toxic by the Centers for Disease Control - and that number would be much greater if the index was lowered, as many experts wish, and if more children were regularly tested. Most cases occur in large and mid-size cities where formerly good housing is deteriorating. When lead paint peels or is improperly removed, or even when it is scraped as a window is opened, it unleashes a dust fine enough to be both ubiquitous and undetected as children crawl on it and touch it. It takes very little ingested lead to damage the still-forming brains and nerves of children or fetuses, and such damage can lead to permanent and debilitating health and learning problems, like lower IQ's and retardation, and behavioral problems. > Where testing has been done, patterns emerge. In Chicago, one in three children tested positive for lead poisoning, mainly in poorer neighborhoods, causing the city to push for increased testing and education. Similar hot spots were found in Providence, Philadelphia and St. Louis. But for sheer density of risk, nothing compares with New York City because of its huge stock of older homes and a lead belt stretching across underserved poor, minority and immigrant communities in Brooklyn and Queens. New York was years ahead of the federal government in outlawing lead paint in 1960. But the city faltered four years ago, passing a law that failed to address the danger of lead dust. That law was struck down on a technicality in the courts this summer, leaving a void on an urgent issue. > A bill before the New York City Council - sponsored by Bill Perkins, who represents parts of Harlem and the Upper East Side - would go a long way to protect those most vulnerable by clearly labeling lead dust a health hazard.  It also corrects a lapse in the previous law, which shielded landlords from liability. The new law would place the burden of fixing lead problems on building owners, who would have to act in a timely way, using trained workers. City officials say the bill is too expensive and goes too far, including its provision to increase the upper age range of monitored children to age 7, from age 6. > Gifford Miller, the Council speaker, has been criticized for not moving more quickly on the legislation, but he now appears to agree with much of what it seeks to accomplish and has offered improvements, like adding a focus on primary prevention. In New York's current fiscal squeeze, City Hall is right to worry about costs, but the mayor's economists also need to consider the long term. Lead poisoning does not typically kill. Instead it leaves a lifetime of expensive concerns - like special schooling and medical care - that society is left to absorb. This is a problem with a clear solution if those in government do the right thing now, while the goal is in sight. *********************************** Lead Paint Industry Gets "Dirty Dozen Award" from Maine Community Group for Poisoning Children MAINE LEAD ACTION PROJECT P.O. Box 1218 Portland, ME 04104 (207) 871-7905 FAX: (207) 871.7905 www.maineleadaction.org leadsafe@gwi.net "Caring For Maine Children, One House at a Time" For Immediate Release April 8, 2003 Contact: Maggie Drummond Maine Toxics Action Center 871-1810 Susan Thornfeldt Maine Lead Action Project 838-9128 NEWS RELEASE Dirty Dozen Award "honors" Lead Paint Industry for #1 children's environmental health problem Group warns homeowners, landlords, contactors and parents of continued danger Portland - Local advocates gathered today with the Maine Toxics Action Center at the site where two children contracted lead poisoning to "honor" the Lead Paint Industry for their role in creating the #1 children's environmental health threat in Maine and the country. The awards highlight twelve facilities, sites or products that pose a threat to public health, the environment and/or worker health & safety. In addition, the awards highlight situations where there has been a lack of action on part of state and local agencies, officials or corporations to effectively remedy the problem. "The Lead Paint Industry fully deserves this award for knowingly marketing a product they knew was dangerous," said Susan Thornfeldt, Director of the Maine Lead Action Project whose two children suffered from lead poisoning. "They have for decades blamed 'ineducable parents' and 'negligent landlords' for the epidemic of childhood lead poisoning in America and have yet to offer any accountable or tangible solution to help end this pervasive public health problem." Young children exposed to small amounts of lead, a powerful neurotoxin, may be at an increased risk of developing permanent learning disabilities, reduced concentration and attentiveness and behavior problems which may persist and adversely affect the child's chance for success in school and life. Maine children are at particularly high risk for lead poisoning due to our older housing stock, renovation activity and occupational exposure. "When my daughters were lead poisoned, I dealt with a landlord who tried to both bribe and bully me to stop me from getting them tested and treated; but I believe that he is the exception. Most landlords want to be conscientious. Placing the responsibility where it belongs, with companies like Sherman Williams and Dutch Boy, is a giant step towards providing greater resources to help landlords and homeowners maintain the integrity of their buildings, and thus prevent the continued poisoning of our children.", said Heather Curtis of the Portland Tenants Union. "The Dirty Dozen Awards 'honor' twelve toxic threats, like this one, that can be found right in our own homes and backyards," said Maggie Drummond, Maine State Director of Toxics Action Center. "Parents and landlords should be aware of the dangers that lead poses to our children so that we can take the proper precautions to protect their health." ### NEWS ADVISORY April 7, 2003 Dirty Dozen Award "honors" the Lead Paint Industry for their role in creating the #1 Children's Environmental Health Problem Group warns Maine landlords, homeowners, contractors and parents of the continued dangers WHAT:         MaineToxics Action Center will present it's annual "Dirty Dozen" award to the Lead Paint Industry who was nominated by the Maine Lead Action Project, a state-wide nonprofit organization. The list of the "honorees" includes a dozen sites of facilities that pose a threat to public health, the environment or worker health & safety, and where there has been lack of action on the part of state or local officials, agencies and corporations to correct the problem. WHEN:     Tuesday, April 8, 2003; 10:00 AM WHO:      Susan Thornfeldt, Maine Lead Action Project                    Heather Curtis, Portland Tenants Union                    Mike Belliveau, Environmental Strategy Center                    Maggie Drummond, Toxics Action Center INVITED:   Andrew Ketterer, Former Maine Attorney General and current lobbyist for the Lead Paint Industry WHERE:   The residence of Susan Thornfeldt and Greg Dasch                130 Highland Street, Portland Maine VISUALS:  Picket fence with lead industry propaganda, Dutch Boy with paint can 'whitewashing' the well documented medical/scientific facts about childhood lead poisoning. CONTACT: Maggie Drummond                 Toxics Action Center, 207-871-1810                 Susan Thornfeldt                 Maine Lead Action Project                 207-838-9128                 207-871-7905 ### ******************************* SHERWIN-WILLIAMS CO. ATTEMPTS TO SPRUCE UP ITS IMAGE Below is a memo from the Alliance to End Chilhood Lead Poisoning regarding a new effort by the paint company to improve its public relations. TO:  Lead Poisoning Prevention Advocates FR:  Eileen Quinn and Ralph Scott, AECLP RE:  Sherwin Williams' Outreach to City Governments Sherwin Williams Paint Company is talking to some city governments about their ideas for a "lead-safe marketplace."  The central feature of the plan is a discount price on Sherwin William paints for lead abatement projects, which will be of very limited value.  The Detroit Free Press wrote about the company's efforts last week: http://www.freep.com/news/locway/deal24_200302 24.htm.  We also heard that they are proposing a similar program to Minneapolis. We're writing to encourage you to find out if Sherwin Williams is in discussions with your city government, to make sure city officials do not make a bad deal, and to help ensure that any deal is not oversold to the public and the press. Please try to find out as much as you can about the specifics of the deal.  Help city officials appreciate that any deal will be used by the company as a public relations bonanza. A few key points that might be worth using in your discussions with city officials: - Sherwin Williams is only doing this because of the mounting pressure they feel from the litigation around the country.  (FYI, the Rhode Island suit is likely to be retried this year). - This program is a drop in the ocean compared to what's needed.  Discounted paint and other materials will have little, if any, impact on improving safety in [your city's] housing containing lead-based paint.  Make sure that city officials understand that paint and materials are a minimal percentage of the cost of making housing lead-safe. - Truly solving this problem requires industry to take substantial responsibility for providing resources. There are simply not enough public funds to solve this problem, especially now that government budgets are so constrained.  Industry should pay its fair share and that means serious dollars for solutions, not just some discounts on supplies. - Governments and paint industry and property owners all have to put more dollars on the table for removing lead hazards.  While taxpayers and property owners are already footing a great deal of the bill, industry continues to avoid responsibility. - No deal should be made that forecloses a government's option to pursue legal action against Sherwin Williams or any of the companies that manufactured lead-based paint. If city officials are intent on making a deal with the company, no doubt they will try to make it sound like a big win for the city. You can use similar messages in outreach to reporters to help the press understand the company's self-interest and the limitations of the new program.  By providing the details about the size of the problem contrasted with the scale of the company's offer, you can help set the record straight. Please share with us whatever you learn about Sherwin Williams having discussions in your city and how city officials are responding to the company's overtures.  If we can provide additional information or assistance, please let us know. ******************************** Historians say paint makers knew about poisonings Two historians said that in spite of this week's mistrial, the state should continue to try to hold paint manufacturers responsible for cleaning up houses containing lead paint. 10/31/2002 BY PETER B. LORD Journal Environment Writer (Providence Journal) PROVIDENCE -- For years, spokesmen for the paint industry have said they didn't know lead paint was harmful to children and when they discovered it was, they took it off the market. But two historians speaking here yesterday say that just isn't so. In the 1920s, medical journals around the country ran stories on lead-poisoned children, say historians Gerald Markowitz and David Rosner. During that same period, the industry launched a decades-long marketing campaign that portrayed lead as sanitary and healthful for children. "The attempt to sell lead, combined with the medical literature about its dangers, reported in internal company memos, starts to give you an idea of who is responsible for a huge American tragedy," Rosner said. "And this tragedy will stay with us as long as there is lead on the walls." Markowitz, a professor of history at John Jay College, and Rosner, a professor of history and public health at Columbia University, published a book last month about pollution caused by the vinyl chloride and lead industries. The lead section was based on internal company memos, meeting minutes and reports that were subpoenaed for a New York lawsuit against the industry. Markowitz and Rosner said lawyers invited them to study the documents and to prepare an affidavit describing what they learned. That research lead to the book. The two historians spoke at Brown University just a day after Superior Court Judge Michael A. Silverstein declared a mistrial in Rhode Island's landmark lawsuit seeking damages from the paint industry to pay for cleaning up thousands of Rhode Island homes treated with lead paint. The mistrial occurred when the jury reported it could not reach a unanimous verdict. It split, with four votes for the companies and two for the state. Markowitz and Rosner have been following the trial by reading stories on The Providence Journal's Web site and have been deposed as witnesses for the state if the trial moves on to the liability phase. "When we got the news last night about the trial, we went into a profound funk," Rosner said. "This is such a critical issue I hope the state pursues it. This is a groundbreaking principle of holding companies accountable for cleaning up the country they polluted." Leaders of local lead-poisoning advocacy groups and Robert McConnell, one of the lawyers who helped the state try its case, attended the talk. McConnell said the state's legal team would meet soon to decide what strategy to pursue in a new trial. Both sides also plan to file briefs asking Silverstein to grant them a verdict from the bench. Gregg Perry, a spokesman for the paint companies, said yesterday there were no other developments following Tuesday's mistrial. Asked whether the companies had a response to Rosner and Markowitz's accusations, Tim Hardy, a lawyer for NL Industries, a defendant in the Rhode Island trial, said the two historians have taken information out of context in writing their history of lead paint. Historians hired by the industry have looked at the same materials, he said, and concluded that widespread occurrences of childhood lead poisoning weren't generally known until the 1940s. Before that, he said, it was considered largely a problem for painters. "Though it was known that painters doing a lot of sanding were at risk, that's a very different issue from whether children who were in a house were at risk," Hardy said. Hardy said that at some point all of the historians probably will be testifying before a jury. Markowitz said the industry has never accepted responsibility for lead poisonings. First it blamed children who had the bad habit of eating things off the floor. Then the industry blamed what its memos described as "nearly ineducable parents" who don't look after their children properly. Now the industry blames landlords, he said. "They see this as a public-relations problem," Markowitz said. "How do they market lead? They've never treated it as a public-health problem." Rosner said it was known in the 1920s that a child would die if he or she consumed the amount of lead paint covering a 1 1/2-inch-square of wall. Yet if you followed the industry's directions for mixing and applying lead paint, you would cover a large room with 200 pounds of lead, he said. Physicians in Baltimore started writing about lead-poisoned children in 1914, Rosner said. European countries banned it because painters were getting poisoned, but Rosner said the American industry increased its marketing efforts. An article in 1924 described children living in a "lead world." National Lead won marketing awards for its Dutch Boy campaign which associated lead paint with a clean, healthy life for children, Rosner said. Minutes of industry meetings in 1930 talked about how to respond to negative news stories about lead paint. In 1938, Rosner said, other pigments started competing with lead, so the lead industry launched an intensive 14-year marketing campaign. Rosner displayed industry memos that talked about solving the problem by getting rid of slums and educating uninformed parents. "You read enough of these documents and it's very upsetting," Rosner said. ****************************** Bush Administration Cozies up to Lead Industry (again) Recently (October 2000), Secretary of the US Department of Health and Human Services Tommy Thompson appointed new members to the department's childhood lead poisoning advisory board.  Until now, such members have been independent experts recommended by the department's staff.  However, this time Secretary Thompson decided to ignore his staff's advice and selected several people who work directly for the lead industry.  You may remember that President Bush selected as his Secretary of the Interior Gail Norton who was a senior attorney for a law firm that counted NL Industries (formerly of Dutch Boy Paint) as one of its clients. Among his appointees for the lead poisoning  advisory committee are:   Dr. William Banner is a witness for the lead industry in the Rhode Island trial against lead paint manufacturers.  In his deposition, he testified that blood lead levels between 70 and 100 do not pose a risk to children's health.  Dr. Joyce Tsuji is a consultant whose corporate clients include ASARCO, DuPont, and King & Spaulding, a law firm representing several lead companies.  She testified for industry in a class action lawsuit disputing the need for medical monitoring in the vicinity of a lead smelter.  Dr. Kimberly Thompson is affiliated with the Harvard Center for Risk Analysis whose funders include 2 defendants in the Rhode Island case and 22 other companies that have released lead in the environment. Rep. Edward Markey has written a report on this incident and has co-authored a letter to Pres. Bush objecting to this latest case of the foxes guarding  the hens. ******************************************************** Chicago sues lead paint companies (finally) By LIZ AUSTIN Associated Press Writer September 5, 2002, 7:51 PM EDT CHICAGO -- The city of Chicago sued makers of lead paint Thursday, seeking hundreds of millions of dollars to pay for removing the paint from homes and caring for poisoned children. The public nuisance lawsuit was filed in the Circuit Court of Cook County. City attorney Mara Georges called on the companies to contribute their share to the cleanup and treatment efforts. "All we're saying here is that it's time that the taxpayers don't bear the burden of having to abate this nuisance," Georges said. "Instead, the people that are responsible for having created the nuisance should come in and fund the abatement program." The defendants include Sherwin-Williams Co., E. I. du Pont de Nemours & Co. and The Glidden Company. Bonnie Campbell, an attorney representing many of the defendants, said the lawsuit is a waste of the city's time and resources. She said the paint itself is safe and only becomes dangerous when it is not properly maintained. "Litigation won't help a single child," Campbell said. "Litigation will not solve the problems that come from poorly maintained housing." Anne Evans, director of childhood lead poisoning for the city's health department, said Chicago has the largest number of children with lead poisoning of any city in the country. More than 12,000 Chicago children were diagnosed with lead poisoning last year, she said. She said the department spends $4 million a year to diagnose and treat lead poisoning and to test for lead in homes. In addition to asking the defendants to pay for treatment and cleanup, the lawsuit seeks compensatory damages, punitive damages and reimbursement for legal expenses. No dollar figure was given. Lead paint has been banned in Chicago since 1972 and nationwide since 1978, after studies showed that particles from chipped paint were poisoning children. Lead poisoning causes developmental disabilities and behavioral problems. Chicago has high rates of poisoning because up to one million houses in the city were built before lead paint was banned, Evans said. The other named defendants in the lawsuit are N.L. Industries, Inc., American Cyanamid Co., Atlantic Richfield Co., BP Corporation North America Inc., BP America Inc., Millennium Chemicals Inc., Millennium Inorganic Chemicals, The O'Brien Corp. and the Chicago Paint and Coatings Association. Chicago's lawsuit was filed a day after a landmark trial against eight former lead paint manufacturers opened in Rhode Island. The first state to sue the paint companies, Rhode Island also claims the manufacturers caused a public nuisance. Cities such as San Francisco, Milwaukee, New York and Newark, N.J., also have filed lawsuits. The paint companies have won dozens of similar lawsuits filed by individuals, cities and counties. Chicago health department employees on Thursday passed out information on lead poisoning to parents at the Uptown Health Center. Jonnika Lyons recently moved to Chicago with her 2-year-old and 6-month-old daughters. She said she had never known about lead poisoning and did not know if her apartment had been tested for lead. "It's something that I'll go back to my apartment complex and ask them about," Lyons said. ***************************************   RHODE ISLAND TRIAL BEGINS! 09/01/2002 BY PETER LORD Journal Environment Writer Lead paint trial will command national attention Atty. Gen. Sheldon Whitehouse is seeking to hold eight companies accountable for manufacturing or selling lead-based paints decades ago. PROVIDENCE -- So many children have been lead-poisoned here that Providence has come to be known as the lead-paint capital of the United States. On Wednesday, the title will take on a new meaning as the state goes to trial with a lawsuit that will be watched around the nation. Atty. Gen. Sheldon Whitehouse is seeking to hold eight corporations accountable for manufacturing or selling the lead-based paints decades ago that have been poisoning children here and around the country for years. He wants a six-person jury to declare the lead-based paints a public nuisance, and then go on to other proceedings to assign liability and damages. This is the first time a state has sued to have paint declared a public nuisance -- creating a condition that unreasonably interferes with the health, safety and comfort of the community. Dozens of suits have been filed by individuals and communities against the paint companies and all have failed. This is also the first time a state has joined forces with a major class-action litigator -- in this case the law firm of Ness Motley, the South Carolina litigators who have won huge settlements from the asbestos and tobacco industries. THE STAKES in the lead paint trial are enormous. Whitehouse says if he wins the case against the eight companies, he could demand money to end what health experts say is the number-one environmental health problem facing Rhode Island's children. But one financial analyst has said that the consequences for the industry could be "catastrophic." And the state's bankers and Realtors have warned that if all 330,000 houses suspected of being coated with lead paint are declared public nuisances, it could "prove disastrous for owners of property, lenders and mortgage bankers." With so much at stake, preparations for the trial have proceeded on a grand scale. The two sides have assembled enough lawyers to fill a city bus. Many are nationally recognized litigators. To accomodate them, Judge Michael A. Silverstein reserved Courtroom 11, Superior Court's largest hearing room and the scene of many past showcase trials. The paint companies have filed motions all the way to the U.S. Supreme Court to try to sidetrack the case. The two sides have listed more than 60 witnesses, including dozens of doctors and scientists and most of the nation's top researchers of lead poisoning. The paint companies have already subpoenaed more than 2 million pages of documents and deposed about 130 potential witnesses. All that discovery will be boiled down to 8 to 10 weeks of testimony before six jurors and six alternates. When it's over, the jury will be asked to address one not so simple question: Is lead paint a public nuisance? Yes. Or no. LAWYERS WILL portray two dramatically different pictures of typical Rhode Island homes. "We will show that thousands of children have been poisoned and we will show the vector is the paint," Whitehouse said in an interview last week. "We'll use a lot of expert witnesses and they will show it takes very little lead to poison," Whitehouse added. "We're not doing this house by house or child by child. The question is whether society collectively has been harmed." The state's lawyers will argue that hundreds of thousands of houses are covered with lead-based paints that left 2,832 young Rhode Island children with signs of lead poisoning last year. The poisoning rate in Rhode Island is more than twice the national average, prompting the state to require blood tests of every child under the age of 6. The explanation for Rhode Island's high rate is that the state has so many older homes built before lead paint was banned in 1978. Also, many urban homes are poorly maintained. Further, critics complain that city officials have been lax enforcing building codes. At Whitehouse's prompting, the case will be tried in phases to help simplify issues for jurors. The first phase will be to determine whether a public nuisance exists. If the jury decides it does, Whitehouse would like to move on to determining who is liable, what the damages should be, and whether other parties should be sued. The paint companies insist landlords are the real culprits. Silverstein has said he will wait for the finish of this first trial before deciding how to proceed. Each side has selected three lawyers to argue its case. The state's primary lawyer is Leonard DeCof, 78, the dean of the state's personal injury lawyers, recognized nationally for his litigation skills. A graduate of Yale with a law degree from Harvard, DeCof was retained a decade ago by Whitehouse's mentor, Gov. Bruce Sundlun, to recover millions of dollars in damages from accounting firms, insurance companies and credit union officials after the collapse of the state's credit unions. Linn F. Freedman, 41, deputy chief of the attorney general's civil division, has argued most of the pretrial motions for the state. Originally from New Orleans, she earned her law degree from Loyola. New to the table is Jack McConnell, 44, a partner in Ness Motley's Rhode Island office and state Democratic Party treasurer. A graduate of Brown University and Case Western Reserve University School of Law, McConnell was one of the lawyers for Ness Motley who negotiated the $240-billion tobacco settlement. All three will take turns questionning witnesses, Whitehouse said. In an interview last week, Freedman and DeCof declined to go into specifics of their case. But Freedman said no other lawsuit against paint companies has advanced this far. JOHN TARANTINO, a lawyer for the paint companies, points to his own family history to argue against the state's case. Tarantino, 48, a graduate of Dartmouth College and Boston University Law School, is president of the Providence law firm of Adler Pollock & Sheehan. During an interview in his firm's conference room on the 23rd floor of the former Hospital Trust building, his back is turned to the windows overlooking the State House, Providence Place Mall and the Federal Hill neighborhood where he was raised. "My grandparents came here with nothing. Zero," Tarantino said. "They ran competing fruit stands. My parents weren't supposed to even talk to each other." Tarantino said his family moved three times on the same street -- each move brought them to a lower floor of a tenement. After he and his wife married, their first home was in the city's West End, he said. His parents never got to go to college. But he and his four siblings all completed graduate schools. His point is that lead paint covers thousands of houses in Rhode Island and doesn't cause any problems if it's properly maintained. He plans to try the case with two nationally recognized attorneys at his side. Donald E. Scott is a graduate of Harvard College and Yale Law School, and a partner at Bartlit Beck in Denver, Colo. He successfully defended Dutch Boy paint company two years ago from a suit by high-profile litigator Peter Angelos on behalf of a 49-year-old man who said he was poisoned as a toddler. Scott's firm specializes in computer-assisted litigation. Laura E. Ellsworth, a graduate of Princeton and the University of Pittsburgh law school, is a partner in Jones Day, one of the world's largest law firms, which touts itself as representing half the Fortune 500 companies. Working from offices in Pittsburgh, she has written and lectured nationally on the use of expert witnesses and trial tactics. Each of the three represents a specific corporation, but because the upcoming trial is focusing on the general question of public nuisance, the three were chosen to represent all eight companies -- American Cyanimid Co., Atlantic Richfield Co., E.I. duPont deNemours & Co., NL Industries, The O'Brien Corp., Millennium Inorganic Chemicals Inc., ConAgra Grocery Products Co. and The Sherwin Williams Co. All of these companies are big. Some are subsidaries of larger corporations. Some are not. Sherwin Williams, the country's largest paint company, has 2,600 stores, $5 billion in sales last year and 25,789 employees. ConAgra is the second largest food company in the United States, with $27 billion in sales and 89,000 employees. DuPont is the country's second-largest chemical company, with $24.7 billion in sales and 79,000 employees. Tarantino says the paint companies believe the most effective way to deal with lead paint is to educate the public better, to make better efforts to maintain properties, and do more enforcement against landlords who let properties deteriorate to the point that they poison children. He argues that Rhode Island law says lead paint is safe if it's intact. And he points to a recent study by a Brown University undergraduate that found 204 landlords in Providence were responsible for poisoning 2,644 young children over several years. The poisonings were tracked by the state Health Department, which mandates blood tests of young children. "Of 330,000 properties with lead paint, 204 landlords are the bulk of the problem," said Tarantino. "To us, that demonstrates that the vast majority of lead painted properties are safe." TWO YEARS AGO, when Whitehouse first announced his suit and Providence officials sought to file their own, the paint companies responded by hiring national public relations firms and lobbyists that included law school professors, a former congressman and a solicitor general. But as the trial date drew closer, the companies shifted some of the work to local professionals. To represent them here, they hired the Providence public relations firm RDW Group, which assigned Tom Walsh, a former Providence Journal reporter, and Greg Perry, a former spokesman for former Atty. Gen. Jeffrey Pine. Likewise, the the companies assigned a Providence lawyer, Tarantino, to lead the defense. Part of defense strategy apparently is to keep the dispute local. "I think the issue is totally unique to Rhode Island. This is a specific question: whether lead in houses in Rhode Island is a public nuisance. It's a Rhode Island case, with a Rhode Island jury and a Rhode Island verdict," Tarantino says. BUT OTHERS insist it's a Rhode Island case with national implications. Financial analysts have been calling newspeople and attending hearings to keep up with the legal proceedings, which threaten to impact stock values of the defendants. One stock analyst told The Journal that if Rhode Island wins, its suit will serve as a template for similar suits around the country. Advocacy groups are using national list serves to keep their members informed. A local group, Childhood Lead Action Project, is collecting a pair of shoes for every child poisoned in Providence last year and plans to display them during a courthouse rally Sept. 18. Judge Silverstein made it clear last week that he wants the jury to pay attention only to what it hears in the courtroom. And he's going to keep lawyers from taking their cases beyond the limited issues of what constitutes a public nuisance. "The court has, it believes, reduced Phase I to an extremely narrow issue," he said to jurors and lawyers. "The court will not look favorably on anyone who in any manner seeks to take Phase I beyond the parameters I have set." In months of pretrial arguments, Silverstein has appeared to enjoy hearing the legal arguments and solving logistical disputes posed by the legal talent facing him each day. A former managing partner in a big Providence law firm, Silverstein also was a highly touted candidate for chief judge of the state Supreme Court last year. He was considered the least politically connected of the top candidates. And he was highly regarded by lawyers and other judges for his handling of the court's difficult special cause calender where big decisions have to be made quickly for parties seeking to obtain injunctions or end teachers strikes and other crises. During the pretrial pleadings, he's been decisive and demanding when it comes to deadlines and legal disagreements. At the same time, he jokes about his age -- he's 68. He banters on a first-name basis with some of the older lawyers, such as DeCof and Joseph A. Kelly. And he doesn't mind sharing jokes with the entire courtroom. During jury selection, he made a point of introducing his stenographer, clerk and deputy sheriff to the jury and explaining what they do. "I'm doing this so you can pay full attention to the proceedings rather than wondering what people are doing here." He made the comment with a smile, but he was clearly serious. REAL-ESTATE TRADE GROUPS SEEK END TO PAINT LAWSUIT Banks and real-estate companies are worried that a negative ruling in the state's case against lead paint companies could affect property sales. 08/10/2002 BY PETER B. LORD Providence Journal Environment Writer PROVIDENCE -- Trade associations representing Rhode Island banks and Realtors are seeking to derail the state's massive lawsuit against the nation's paint companies because the groups say the case could "prove disastrous for owners of property, lenders and mortgage bankers." The Rhode Island Bankers Association and the Rhode Island Association of Realtors want Superior Court Judge Michael A. Silverstein to change the structure of the state's lawsuit, which is scheduled to go to trial Sept. 4. Silverstein has already rejected the paint companies' demand that he notify hundreds of thousands of individual property owners across the state. He has scheduled hearings Tuesday and Wednesday on a variety of motions offered by parties in the case. Atty. Gen. Sheldon Whitehouse initiated the unprecedented suit to recover what could amount to billions of dollars in damages from companies that produced lead-based paints in the first half of the 20th century. Deteriorating lead paints poison nearly 3,000 children in Rhode Island each year, causing a wide range of neurological damage. Whitehouse has argued that state, federal and local governments, private landlords and homeowners are all paying to repair the damage, but the companies that made the paints are doing nothing. The paint companies argue that they didn't know their paints could harm children, and when it finally did become clear, they took them off the market. Judge Silverstein has agreed to try the case in an unusual series of phases. First he plans to hold a trial on whether the paints have created a nuisance. A second trial would be held to determine what harm was caused by the paints. During a third trial, remedies will be argued. Finally, in a fourth trial, the judge will consider the paint companies' arguments that landlords and homeowners be identified as third party defendants because they allowed the paints to deteriorate and cause the actual harm. The Realtors and bankers argued in a brief filed this week that the "bifurcated manner in which the Court proposes to try this case and the consequences which may flow from that approach, present issues of grave concern to RIBA's and RIAR's constituencies." The groups asserted that if the court finds that homes painted with lead paint constitute a nuisance and liability is not attributed to any specific party, "investments in and sales of such properties would undoubtedly slow to a trickle until the open-ended question of liability was sorted out." The brief doesn't suggest how many properties would be affected. But lawyers have argued in previous hearings that more than 300,000 housing units in Rhode Island have been treated with at least some lead paint. The brief argues that lenders would refrain from underwriting new loans on such properties and they might be forced to foreclose on existing loans. All those troubles would be averted, the lawyers argued, if the court would simultaneously determine whether the defendants were liable for the nuisance. The trade groups also complained that having a trial on the sole issue of whether lead is a nuisance is not legally permissible because it seeks to resolve a hypothetical issue rather than deciding whether any particular party is liable. William A. Farrell, an attorney representing the trade groups, said yesterday it's up to Silverstein to accept or reject their motion to file arguments in the case. Whitehouse's office had no comment on the motion. ************************************************* THE LEAD INDUSTRY SPREADS ITS LIES WITH A MORE "INTELLECTUAL" APPROACH -----Original Message----- From: Ralph Scott [mailto:RScott@AECLP.org] Sent: Monday, July 01, 2002 1:40 PM To: RScott@AECLP.org Subject: [Leadnet] Warning re. lead lawsuit propaganda road show The Manhattan Institute, a conservative think tank akin to the Heritage Foundation, recently sponsored a forum in Providence, RI designed to influence public opinion prior to the opening phase of the trial against the lead industry in September.  This is virtually the same line-up pushing a pro-industry agenda as appeared recently in Baltimore and seems to be touring the jurisdictions where litigation is underway or likely. As evidenced by this article in the Providence Journal a few days ago, the advocates in Providence did a great job of turning this incursion into an opportunity to highlight the need for holding the lead paint manufacturers accountable.  The Alliance is interested to hear - and to help - if this "road show" heads your way. ----- Forum sparks debate over lead-paint lawsuits Local advocates shoot down those visiting from the Center for Legal Policy at the Manhattan Institute who argue the lawsuits are inappropriate. 06/20/2002 PROVIDENCE -- Members of a conservative New York City think tank came here yesterday to the "lead-paint capital of America" to argue against filing lawsuits against the companies that produced the lead-based paints years ago that are poisoning young children today. They spent a few hours laying out their case. But in a few minutes, two local advocates passionately threw their arguments back at them, questioning both the think tank and the big corporations. When it was over, Judyth W. Pendell, director of the Center for Legal Policy at the Manhattan Institute, said her group would have to question whether it really accomplished anything on its visit to Providence. Rhode Island has a lead-poisoning rate 21/2 times the national average and it's the first state in the country to sue the paint companies, alleging they created a public nuisance with products they knew were dangerous. Since then, numerous other localities have filed similar suits. Massive discovery has been going on for months and the trial is set for September. Pendell opened an invitation-only forum at the Providence Biltmore by saying her group was looking for solutions to the lead-paint problem that use strategies other than legislation or litigation. She echoed a defense of the paint industry that the industry has stuck to ever since Atty. Gen. Sheldon Whitehouse filed his lawsuit two years ago. "My understanding is the paint industry stepped forward and voluntarily stopped marketing lead paint when it learned there were problems [in the 1950s]," Pendell said. Several speakers argued that lawsuits now punish the wrong people, do little to deter similar actions by others and probably won't help the victims. In response, a lawyer for the Conservation Law Foundation and a policy aide for Providence Mayor Vincent A. Cianci Jr. pointed out that more than a few respected researchers have documented that the paint industry knew it was marketing a dangerous material for years. They asked Pendell how she expected people to believe otherwise. "Why wouldn't you want to hold accountable companies that sold products and said they were safe and durable, at a time when they knew what they would do?" asked Stephanie Pollack of the Conservation Law Foundation. "It is hypocritical for the manufacturers to sell the products saying they were durable, and then blame the landlords when they deteriorated." Bianca Gray of the mayor's office added: "We all know that in the U.S. and the world the knowledge of the problem was well known before the 1950s. Now the industry is the only piece of the puzzle that hasn't been addressed. What is its culpability? I don't hear from you honestly saying what part of the puzzle industry is going to play." After the forum, Pendell was somewhat taken aback by the criticism. "We're really trying to focus on a solution," she said. "There is a perception out there that we're here as a mouthpiece for industry, but that is not the case." She said her organization is largely financed by individuals and foundations, and only to a small degree by corporations. Pendell said her organization is not opposed to families of lead-poisoning victims suing landlords for the neurological damages caused by lead. But it is opposed to suits against the big corporations, theorizing that like the tobacco suits, much of the proceeds would go to lawyers and little would go to solving the problem. The people running the paint companies weren't there when lead paint was made and marketed, she said. And if lawsuits are successful, innocent workers and  Shareholders would bear the brunt of the costs. Daniel O. Chute, an industrial hygienist, said that lead paint causes only 1 percent of the lead problems in the environment. Other sources are batteries, lead shotgun pellets, plumbing, and roof flashing. Randall Lutter, a resident scholar for the AEI/Brookings Joint Center for Regulatory Studies, said the  Lead-poisoning epidemic is largely past. In 1980 he said nearly 100 percent of African-American children had blood lead levels of 10 micrograms/deciliter; now the rate is less than 10. (He said he wasn't aware of levels in Rhode Island; last year 2,832 or 8.7 percent of the Rhode Island children tested had levels of 10 or above.) "This is one of the most dramatic public-health stories in the United States," Lutter said. Some 25 million homes are reported to still have lead hazards, he said, but only about 100,000 have been cleaned up. Only about 100 of the 900,000 children with elevated lead levels win damage suits against landlords. He argued suits against paint companies are inappropriate because the damages would be won by governments, rather than children. The defendants being sued aren't directly responsible. And companies would have to pay the damages, even though landlords are the ones responsible. "These suits hold companies liable for past actions based on current information," Lutter said, pointing out that national blood-lead level guidelines have gone from 40 in 1970 to 10 in 1991. "A more sensible policy would provide better incentives for landlords," he said. State Sen. Thomas J. Izzo, D-Cranston, sponsor of lead-reform legislation recently approved by the General Assembly, got big applause when he took the podium and described his bill. For the paint companies to argue they bear no responsibility is "difficult to deal with," he said. It would be much more constructive to take this approach: "What do you bring to the table that you can do?" Leslie Lenkowsky, president of the Corporation for National Service, said volunteer efforts such as ClearCorps, an industry-supported group that cleans up contaminated homes, should be the leading answer. But ClearCorps has had a spotty record around the country. In Providence, it has cleaned up 130 housing units, according to director Joan Carbone. ******************************************************** LEAD INDUSTRY STRATEGY LEAKED IN RHODE ISLAND March 1, 2002 Lead Paint Leak "Titled 'Rhode Island Positioning,' the memo distributed two weeks  ago by public-relations consultant Jody Powell to the dozens of  lawyers and consultants representing the nation's lead-paint companies was a straightforward exposition on how to spin public  perceptions," writes the Providence Journal. "Unfortunately, it seems for Powell's firm, the memo actually became public." A former press secretary to President Jimmy Carter, Powell is now an executive with Weber Shandwick, where he is helping the lead-paint companies fight off a potentially massive product liability suit. Apparently he accidentally emailed his strategy memo to a reporter, who promptly published it in its entirety in the Feb. 15 Rhode Island Law Tribune. Result: Weber Shandwick was fired from the account, and the PR defense of lead has been handed to Robert Dilenschneider (whose previous projects include Three Mile Island and the war in the Persian Gulf). Dilenschneider's man in charge of the lead paint account is Matthew Swetonic, former director of the Asbestos Textile Institute. Source: Providence Journal, March 1, 2002 http://www.prwatch.org/spin/index.html =================================== Reporter Spin: PR Firm Bares Lead Strategy Email details plans to work ProJo, AP reporters By VINCENT MICHAEL VALVO Law Tribune Staff Writer Rhode Island Law Tribune By VINCENT MICHAEL VALVO Law Tribune Staff Writer On Feb. 28, Providence Superior Court Judge Michael Silverstein will open hearings on whether paint manufacturers created a public nuisance by putting lead in their products. If he rules affirmatively  on that question, the case will proceed and will open the doors for a massive product liability suit against any company that produced lead-based paint products. Until outlawed in 1978, nearly every household paint product sold in the nation was lead-based. That's why, on the day of that court appointment, press relations professionals for the paint company defendants and their law firms plan to spin a story that this is just a procedural ruling that has no real impact. Their PR strategy is outlined in a memo obtained last week by the Rhode Island Law Tribune. The course of Rhode Island's lawsuit could set the stage for a suit on the order of magnitude as the one that pulled billions of dollars from U.S. tobacco industries. How the public - and especially investors - view the court proceedings will also have significant effect on the stock prices of the companies involved in the suit. The nine paint companies named in the lawsuit are: Atlantic Richfield Co., or Arco, of Los Angeles; Sherwin-Williams Co. of Cleveland, Glidden Co., which is a unit of Imperial Chemical Industries PLC in England, SCM Chemicals Inc. and American Cyanamid Co., whose paint liabilities were assumed by Cytec Industries Inc. of West Paterson, N.J.; DuPont Co. of Wilmington, Del.; and, NL Industries Inc. of Houston. Those companies, and the law firms representing them, are setting their sights on a substantial public relations problem. To help manage public perception, the participants have hired Weber Shandwick, a national public relations agency, to spin the story. Weber Shandwick's motto, posted on its website, is, "To deliver results that influence outcomes for out clients." Last week, the Rhode Island Law Tribune obtained a copy an internal e-mail memo circulated by Jody Powell of Weber Shandwick. The recipients are members of the affected companies, other public relations professionals, and a bevy of lawyers, including Carl Henlein, co-chair of the Catastrophic Loss Litigation group at Frost Brown & Todd in Kentucky; Antonio Dias, a partner and regulatory litigation attorney in the Pittsburgh office of Jones Day; and Otis Pearsall, an antitrust and products liability partner at Arnold & Porter in New York City. Below, The Law Tribune reprints the e-mail memo: From: "Powell, Jody" Sent: Tuesday, February 12, 2002 7:52 PM Subject: RI Positioning Since I will be on a plane on Thursday afternoon, I wanted to pass on some thoughts for you all to discuss re RI. Don't get hung up on the precise wording of the messages. The central issue is what we do with them once we are in agreement. As we all know, how the media reports the events on February 28th is important for how this proceeding is viewed by Wall Street and by potential plaintiffs in other suits. For Wall Street, I think, the message is that this proceeding is only the first of a multi-step approach that this judge has decided to take. Deciding whether lead paint can be classified as a public nuisance is a threshold question that will determine all of the issues as this case moves forward-discovery, liability, remedies, etc. If the companies prevail, even the AG admits his case is mortally wounded. If the companies do not prevail, there are still a number of legal issues that must be decided. For potential plaintiffs, seems to me that the message is that lead paint is not a public nuisance, but if it is, it is a nuisance created by a relatively small percentage of landlords who neglected their property and allowed paint to peel and flake. If the case proceeds, it just means that the nuisance theory is in play. The companies still have all of their defenses as none of the specific facts of lead paint are going to be dealt with in this hearing. We probably also need to get across the point that nuisance theory has been rejected by courts around this country and that this judge admits he is in "legal wilderness". Most courts will reject nuisance as a matter of law, regardless of what happens in Rhode Island. The best way to make sure that the media carries these messages is to pre-brief reporters so that they understand why all the above is true. We cannot afford to hide from this turn of events. Rather, we should embrace the opportunity the Court in Rhode Island is offering the parties to deal with the nuisance issue first. This way, the case can be dismissed before both sides spend years arguing over the other issues. We need to start engaging at least three key reporters once both sets of briefs are submitted to the court in advance of the Feb 28th hearing-Peter Lord of the Providence Journal, Lisa Payne of the Associated Press and Milo Geyelin of the Wall Street Journal. We also should talk with Dow Jones and Bloomberg to make sure that they don't read anything more into the judge's order on 28th-especially if a court date is set for the nuisance phase. We need to decide who should pre-brief the eporters-preferably a lawyer with one of us on the phone. Date Received: February 15, 2002 ============================================ From the Providence Journal, Mar. 1, 2002. Lead paint lawsuit heading for trial * Rejecting arguments from paint company lawyers, a Superior Court judge sides with the attorney general's office in moving the case forward. BY PETER B. LORD Journal Environment Writer PROVIDENCE -- Sweeping aside a barrage of objections from defense lawyers, Superior Court Judge Michael A. Silverstein ruled yesterday that the state's precedent-setting lawsuit against the nation's top paint companies will go to trial Sept. 4. Rhode Island is the first state to go to court to try to force the paint companies to do something about the lead-based paints they made and sold in the first half of the last century. Health officials say those paints are poisoning nearly 3,000 children annually in Rhode Island alone. "I couldn't be more pleased," Atty. Gen. Sheldon Whitehouse said after Silverstein's ruling. "We're able to take this to trial in the manner that we wanted it tried. We have a trial date, and we are going to trial." Andrew Ketterer, a former attorney general in Maine and consultant for the paint companies, cautioned that the judge only approved the first phase of an unusual four-part trial. It's really just a hearing, he said, on the issue of whether lead paint is a nuisance. "We think the facts are on our side," Ketterer said. "We haven't created a nuisance here, or anywhere else." Silverstein actually ruled three weeks ago that the state could proceed with its nuisance suit against the paint companies. He scheduled a hearing yesterday for the two sides to come to agreement on a trial schedule. But there was no agreement. In fact, the adversaries barely spoke during the three weeks. Whitehouse came into court with a proposed order to go to trial June 17. The paint company lawyers arrived with a battery of arguments that the trial shouldn't proceed as Silverstein ordered. Silverstein wasn't pleased with either approach. He said Whitehouse's plan was overly ambitious. But he said the paint company lawyers were seeking to argue issues he had ruled on nearly a year ago, and he said that was not acceptable. Lawyer John Tarantino, representing Atlantic Richfield, raised several objections. He complained that the state was trying to obtain equitable remedies for the thousands of individuals who own houses painted with lead paint. At the same time the state is seeking damages for state-owned buildings treated with lead paint -- that type of case requires a jury trial, he said. He said the issue concerning damages to state property should be separated and tried first. He also objected to trying the case in phases. Any defendant has a right to a trial by one jury, and it's likely more than one jury will be expected to rule on the various parts of the trial, Tarantino said. Under the state's plan, if it proves a nuisance exists, then there would be subsequent trials to determine who caused the nuisance, what the proper remedy would be, and whether third parties, such as landlords, could be held liable. Tarantino also argued that the state should notify the owners of the estimated 330,000 houses in Rhode Island treated with lead paint that a nuisance case was being filed on their behalf. Would the owners of Newport mansions be told to remove beautiful murals painted with lead-based paints if the state wins a judgment that any house with lead paint is a nuisance? he asked. Would such a declaration cloud the titles of all homeowners? The attorney general has a right to protect natural resources such as air and Narragansett Bay that are collectively owned by the people of Rhode Island, Tarantino said. But that's not the same as filing suit on behalf of thousands of homeowners, he said. Judge Silverstein sparred with Tarantino over his arguments, asking if he really expected the state to bring in every homeowner, plus banks and insurance companies -- so many people that they wouldn't even fit in the Dunkin' Donuts Center, let alone any courtroom. "Are you arguing that this is such a massive problem the court can grant no relief?" Silverstein asked. Linn Freedman, assistant attorney general, countered that Tarantino was asking the judge to review issues he resolved long ago. State Health Department records show that in 1999, when the suit was first filed, 3,210 children had elevated blood levels in Rhode Island, Freedman said. In 2000 the figure was 2,804 and last year it was 2,832 -- for a total of 8,846 in three years. "It all comes back to one point -- that kids are out there getting poisoned today while we're in here arguing," Freedman said. "We are ready to go to trial now. There is no reason to delay the day of reckoning here." After a break, Silverstein came back and sided with the state, although he allowed more time for trial preparations. He noted that there were about 40 people representing the paint companies and a half-dozen on the state's side, and he urged them to start working together to save everyone time and money. ******************************************************************* RHODE ISLAND JUDGE SENDS CASE TO TRIAL ON CHARGE OF "PUBLIC NUISANCE" FOR IMMEDIATE RELEASE: Contact: Don Ryan or Eileen Quinn February 5, 2002 202-543-1147 Milestone Ruling in Rhode Island's Lawsuit Against Paint Companies Superior Court Moves Case Forward on Key Legal Claim The state of Rhode Island achieved a major victory today in its case against the lead industry.  As requested by the Rhode Island Attorney General Sheldon Whitehouse, the state Superior Court decided to focus the first phase of the trial on the central claim against the defendants:  that lead-based paint in public and private buildings constitutes a public nuisance.  Judge Michael Silverstein ruled that the Court will first determine whether the presence of lead-based in homes and buildings threatens the health and safety of the state's children.  This ruling makes it likely that the case will go to trial before the end of this summer. "The public nuisance claim lies at the heart of the Rhode Island complaint against the defendants," notes Don Ryan, Executive Director of the Alliance To End Childhood Lead Poisoning.  "Government suits based on public nuisance represent a whole new ball game from prior litigation against the lead industry.  It's a huge win that these questions will finally have their day in court." If the Court finds that lead-based paint does indeed constitute a public nuisance, the case will next address the defendants' responsibility for the nuisance and appropriate remedies.  The judge pointedly rejected the defendants' gambits for delay.  Judge Silverstein ordered the parties to work out a schedule for moving forward with the case by February 28, 2002; if they are unable to do so, he will impose one. Since the Rhode Island case was filed just over 2 years ago, 44 governments have taken legal action against the lead industry - 12 counties in California, New Jersey, Texas, and Mississippi, 23 cities, including San Francisco, Oakland, Milwaukee, Newark, NJ, and St. Louis, as well as several school districts and housing authorities.  These governments have sued paint companies, lead pigment manufacturers, and the Lead Industries Association for manufacturing and marketing a product they knew was unsafe. Despite significant progress in reducing lead poisoning, it remains the number one environmental health hazard facing American children.  Lead exposure can cause permanent damage to a child's nervous system, resulting in IQ loss, learning disabilities, reduced attention span, and behavior problems.  The US Department of Housing and Urban Development estimates that 40% of US homes contain lead paint. Formed in 1990 the Alliance is a national advocacy and policy organization working to protect children from lead poisoning.  More information about lead poisoning and  lawsuits against the lead industry is available at www.aeclp.org. ******************************************************************* ****************************************************************** THE LEAD INDUSTRY COUNTER-ATTACKS AGAINST THE LAWSUITS In response to all the current and potential lawsuits around the country, the lead paint corporations have revved up their public relations machinery to present a benign public image.  They claim that they funded lead poisoning research and then stopped selling lead paint when they understood its dangers to young children.  They are also trying to convince the public that they are currently making a serious effort to deal with the problem.  As part of that effort, the Dupont Corporation has hired a public relations outfit, MR Strategic Services, to garner support for a letter to the President advocating a modest increase in the resources devoted to lead poisoning.  What the PR firm does not tell you is who its client is, nor, obviously, does the proposed letter give any hint that the lead industry might have some responsibility for solving the problem. What follows is a letter from the Alliance to End Childhood Lead Poisoning describing the Dupont/MR letter and a proposed letter by the Alliance urging a much more comprehensive anti-lead campaign. January 25, 2001 MEMO TO: Advocates for Lead Poisoning Prevention, Public Health, Affordable Housing, and Children's Welfare FROM: Don Ryan and Eileen Quinn Earlier this week, a Washington public relations firm, M&R Strategic Services, began asking public interest and public health organizations to join in a letter calling on President Bush to increase federal efforts to prevent childhood lead poisoning, including a doubling of funds for HUD's lead hazard control grants.  While this sounds appealing at first blush, this memo explains why the Alliance has chosen not to sign onto the M&R letter - and why the Alliance and other public interest organizations are sending a separate letter to President Bush with more comprehensive recommendations for his leadership. We urge you to join in signing onto the attached (see below) Alliance letter that calls for comprehensive solutions. M&R Strategic Services' client is DuPont, one of several companies now being sued by 45 states, cities, counties, school districts, and housing authorities for manufacturing and marketing lead-based paint for decades despite their clear knowledge of the dangers.  Since Title X was passed more than a decade ago, the lead and paint industries have done next to nothing to increase resources to make high-risk housing safe nor have they otherwise contributed to prevention in any meaningful way.  The paint companies' newfound interest in lead poisoning prevention coincides with the growing legal pressure confronting them.  Just last month, 24 New Jersey cities and counties sued DuPont and other lead-based paint manufacturers. That the paint companies are beginning to acknowledge the reality of childhood lead poisoning and the dangers posed by lead paint hazards in 25 million housing units is a welcome shift.  But this industry effort to organize public interest groups to call for White House leadership under the industry's own terms is most troubling.  Of course, we all share the goal of increased federal funding for lead poisoning prevention, affordable housing, and public health programs.  But the unified front that the paint companies seek to form with public interest advocates is artificial and the recommendations to the President are incomplete and out of balance. · Focusing attention solely on HUD's lead hazard control grants misses the "elephant in the room."  While this valuable program is targeted to highest risk, low-income housing, it currently abates only about 7,000 units a year. Doubling funding for these grants (as good as it sounds and as welcome as it would be) would still fund the abatement of less than one-tenth of one percent of the 25 million units estimated by HUD to pose "significant lead hazards." · In all likelihood, the White House would offset increases in HUD's lead hazard control grants by cuts to other affordable housing programs.  Budget "shell games" will not make US housing safe from lead hazards. · It is critical that the companies that manufactured lead-based paint - who are ultimately responsible for the problem - contribute their fair share to its solution by directly contributing resources to help make highest risk housing lead safe. · Federal law already entitles all children served by Medicaid to screening for lead poisoning, a requirement widely ignored by the states and unenforced by the Bush Administration. · Outreach and education to "inform families about lead-safe practices" is an industry perennial that places responsibility where it least belongs - on parents.  Parents whose homes contain lead hazards do not have it within their power to protect their children from poisoning.  This responsibility lies with property owners, government agencies - and the companies that caused the problem. The paint companies' call for even more spending of taxpayer dollars to fix the problem they created is not taking responsibility nor providing real leadership.  While we are all working hard to win increased federal funding for lead safety, affordable housing, public health, environmental protection, and consumer programs, we are troubled by the companies' attempt to distract attention from their responsibility to contribute to effective solutions. The Alliance has thus declined to sign the letter M&R is circulating.  We are inviting both national and grassroots public interest organizations to sign the attached letter to President Bush supporting comprehensive solutions. Please email Ralph Scott (rscott@aeclp.org <mailto:rscott@aeclp.org>) at the Alliance by noon Eastern Time on Monday, January 28 to sign onto the attached letter.  Please feel free to call Don Ryan, Eileen Quinn, or Ralph Scott at 202-543-1147 with any questions you might have. Thanks very much. ------- Sign-On Letter to President Bush January 25, 2002 Honorable George W. Bush President of the United States The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500 Dear President Bush: We are aware that paint companies are seeking your support and praise for industry initiatives related to childhood lead poisoning.  We, the undersigned representatives of nonprofit organizations concerned about children's health, affordable housing, environmental protection, and consumer protection, urge you to accept nothing less than a comprehensive solution that will authentically protect the health and intellectual potential of all America's children.  Such an effective solution must include all key stakeholders, including government, industry, and affected communities. Despite significant progress in reducing lead poisoning and a government ban on residential lead paint in 1978, nearly one million U.S. preschool children are poisoned by lead.  Tragically, our most vulnerable children are in the worst danger.  Low-income children are eight times more likely to be lead-poisoned than upper-income children; African-American children are at five times higher risk than white children.  In some communities, a third to a half of preschool children are lead poisoned. We ask you to: · Affirm the national goal of eliminating childhood lead poisoning by 2010. In the same way this nation conquered polio and other childhood diseases, we can eliminate the lead paint hazards that threaten the health and intelligence of our children. · Substantially increase the federal investment in lead safety and low income housing beginning in FY2003, including the National Housing Trust Fund.  Doubling lead paint abatement grants is critically needed, but this increase cannot come at the expense of other affordable housing funds, since the acute shortage of decent, safe, and affordable housing makes it difficult for families to find healthy homes for their children. · Enforce HUD's lead-safety regulation to make all federally assisted housing lead safe.  This practical standard reflects lessons learned from research and real-world experience and offers a model for taking lead-safety to scale in private housing. · Reform the ineffective approach of waiting to act until after a child has already been poisoned.  In addition to screening all Medicaid children's blood, it is time to start screening high-risk housing for hazards and taking corrective action to prevent poisoning. · Expand the federal government's results-oriented enforcement of the lead disclosure rule. · Expect the full participation of the paint companies and lead industry in effective solutions to make lead-burdened housing safe.  With lead paint covering walls, windows and woodwork in 40% of American homes, industry's contribution needs to be commensurate to the scale of the problem it created. · Honor the families struggling to protect their children in high-risk housing by placing responsibility for solutions where it belongs - with property owners, government agencies, and the companies that caused the problem. The sad truth is that the paint companies profited for decades from selling a product they knew to be dangerous.  Until now, these companies have not contributed in any meaningful way to protect children from lead paint and dust hazards present in fully one-quarter of all US housing.  The paint companies now come forward "to be part of the solution" in response to the mounting legal pressure of the lawsuits filed by school districts, cities, counties, and the state of Rhode Island. We welcome the companies' overdue cknowledgement of the problem.  But we urge you to insist the industry contribute its fair share to a comprehensive strategy that actually adds up to a solution - with resources and action targeted to protecting children at highest risk.  It would be a terrible injustice if we ask less of the companies that manufactured lead paint than we have of the taxpayers, property owners, and families who have paid and continue to pay the price for lead poisoning. Sincerely, ********************************************************* ** Legal Remedies Statement of Former Attorney General Scott Harshbarger: Litigation Against Lead Industry When I served as attorney general of Massachusetts, I was the chief law  enforcement officer and the first line of defense in protecting public  health and safety. Based on what is now known about the lead pigment  industry's deliberate behavior, its knowledge of lead's dangers, its  ability to make safe alternatives and its failure to take responsibility  for its actions, I believe state and municipal litigation against the lead  manufacturers is the right thing to do. I believe it is in keeping with  the highest responsibilities of the position of attorney general and urge  other states to join Attorney General Whitehouse of Rhode Island in taking  such action. Let us never forget that children's lives are at stake and that governments are responsible for protecting their health and safety.   Millions of children continue to be exposed to the lead that dusts off  paint in their homes from the friction of windows and doors, aging, and  renovation projects. This lead causes reduced intelligence, learning and  behavioral problem and other adverse health effects. State lead paint litigation will benefit children and families by permanently eliminating lead hazards from buildings before children are  poisoned. The suits also serve to protect taxpayers, who heretofore have  borne the cost of detecting and abating lead hazards, lead poisoning  screening and treatment, and special education programs for lead-poisoned  children. This litigation does not let negligent landlords off the hook. It should  be part and parcel of a broader state strategy to protect children and end  this scourge once and for all. It is especially important that governments are making public health the  priority in bringing these suits. The suits seek to require that  defendants fund prevention programs, thus ensuring that any proceeds of  the lawsuits are targeted for protecting children. The principles that  underpin these lawsuits - preventing future harm and holding accountable  those who have caused harm - clearly show the public interest merit of  these lawsuits. December 7, 2001 > > Alliance To End Childhood Lead Poisoning * 227 Massachusetts Avenue, N.E., > Suite 200 > Washington, DC 20002 * Phone: 202-543-1147 * Fax: 202-543-4466 * Email: > aeclp@aeclp.org <mailto:aeclp@aeclp.org> CITY OF NEWARK, NJ SUES For Immediate Release:                              Contact:          Don Ryan or Eileen Quinn Tuesday, December 4, 2001                                                  (202) 543-1147 Paint Companies Face Mounting Legal Pressure Newark Joins in Suing the Lead Industry Washington, DC - Newark, New Jersey today joined the growing number of governments who are suing the lead industry to clean up lead-based paint hazards in housing and to recover the public health costs of lead poisoning. Rhode Island, San Francisco, Oakland, St. Louis, Milwaukee, six counties in California and Texas, three school districts in Texas and Mississippi, and the New York City Housing Authority have sued paint companies, lead pigment manufacturers, and the Lead Industry Association for manufacturing and marketing a product they knew was unsafe. With forty percent of the US housing stock contaminated by lead-based paint, substantial resources are needed to protect children from lead exposure.  While industry has avoided responsibility, taxpayers have spent hundreds of millions of federal, state, and local funds to address lead hazards in housing.  The tragic toll of lead poisoning has also fallen on families with poisoned children and property owners. "Newark's decision adds to the growing momentum to ensure that the lead industry bears its fair share of solving the problem it created," said Don Ryan, Executive Director of the Alliance To End Childhood Lead Poisoning.  "Despite the overwhelming evidence of the danger of its product and the availability of safer alternatives, the lead manufacturers knowingly marketed a poisonous product for decades." Although the lead pigment manufacturers knew of dangers of lead-based paint since the early 1900s, the industry aggressively promoted it as safe for use in homes, apartments, schools, hospitals, and nurseries, claiming that lead-based paint promoted health and sanitation.  While the industry internally acknowledged the hazards of lead-based paint, it concealed them from the public and used its lobbying clout to defeat warnings labels and other safety standards. "The lead industry has yet to contribute in any meaningful way to protect children from its poisonous products," continued Ryan.  "Its callousness has put children at risk and left taxpayers holding the bag.  By insisting that industry be part of the solution, Mayor James and other leaders are taking a stand for children and for all citizens." Modeled on the states' successful lawsuits against tobacco companies, these suits pose a critical opportunity to advance public health, but only if the remedies and proceeds are directed specifically to protecting children from lead poisoning, not to augmenting general coffers. Despite significant progress in reducing lead poisoning, it remains the number one environmental health hazard facing American children.  Lead exposure can cause permanent damage to a child's nervous system, resulting in IQ loss, learning disabilities, reduced attention span, and behavior problems.  Usually, children are poisoned in their own homes by lead-contaminated dust from peeling paint or home mprovement projects that stir up lead dust.  Lead poisoning is an entirely preventable disease, but prevention requires acquiring additional resources targeted to control and remove lead hazards in the nation's highest risk housing. Formed in 1990 by leaders in public health, environmental protection, affordable housing, and civil rights, the Alliance is the preeminent national advocacy and policy organization working to protect children from lead poisoning.  Additional background about lead poisoning and lawsuits against the lead industry is available at www.aeclp.org. ******************************************************************* ****** From the (Newark) Star Ledger... Passaic Sues Makers of Lead Paint 12/20/01 BY RUSSELL BEN-ALI STAR-LEDGER STAFF The city of Passaic sued the lead paint industry yesterday, alleging that the industry's major manufacturers knew, but conspired to conceal, the dangers lead paint posed to children. Filed in the Chancery Division of Superior Court in Paterson, the civil suit also asserts that paint manufacturers deliberately misled the public and government agencies about the risks of lead paint, which they have known about for nearly a century. The suit, which seeks an unspecified amount in damages. It is the latest legal attack against the paint industry, which has increasingly found itself in the crosshairs of cities and counties with limited funds, but formidable expenses for lead abatement projects and special education services for lead-poisoned children, their families and small homeowners. Newark filed suit last week, and Hillside, Bayonne and Jersey City plan to file similar complaints. Other cases are pending in Rhode Island, Texas, California and elsewhere. "The purpose of the lawsuit is to have the lead paint manufacturers come to the table to help solve the problem," said Jon L. Gelman, a Wayne attorney who is representing Passaic, Hillside, Bayonne and Jersey City in their complaints. "The federal government has acted, state and local governments have acted," said Gelman, who specializes in asbestos litigation. "Insurance companies have acted and parents of exposed children have acted. The entity that has not come to the table to solve the problem is the lead paint companies, who knew it was a problem since 1904." But industry representatives are quick to note that they have never lost or settled a lawsuit, including those that allege the industry is a public nuisance or conspirator. "I think there is a long history of corporate responsibility by the companies targeted as defendants in these lawsuits and I think the evidence will show that," said Andrew Ketterer, a former attorney general of Maine who serves as a spokesman for several companies involved in lead paint litigation. "These companies paid for studies and revealed the results of these studies to the public," said Ketterer, who said he has not yet seen the Passaic suit. He also said the companies stopped making lead paint products more than 20 years before the government banned them. Residential use of lead paint was banned in New Jersey in 1971 and nationwide in 1978. Elevated levels of lead can alter the cell structure and chemistry of developing brains. It lowers intelligence, impairs cognitive function and can increase hyperactivity and aggression levels. Lead can cause kidney failure, deafness and sight loss. But more than 1 million housing units were built in New Jersey before 1950, when the content of lead in paint was the highest. The city of Passaic had 41 cases of children with lead poisoning last year, one of the highest in the state, according to a recent government report. Staff writer Judy Peet contributed to this report. A major victory for those who want to see justice prevail in Rhode Island!  On April 2, 2001, the Superior Court judge ruled (mostly) in favor of the Attorney General who is suing the lead paint companies.  Click here to see the AG's press release and the full decision. But the lead paint industry has powerful friends... The lead/paint industries are not alone in fighting the lawsuits.  Other industries that produce toxic or dangerous products are equally concerned that if they knowingly continue to manufacture and sell things that harm the public, they could suffer a similar fate.  In fact, the U.S. Chamber of Commerce is a leading player in a campaign for what is euphemistically called "tort reform."  This is an effort to drastically reduce the amounts that juries could award victims of corporate misdeeds.  So, for example, if a corporation knew that its manufacturing process was severely polluting a nearby river, the affected individuals or community could only collect minor damages and thereby make only a small hiccup in the company's bottom line.  In other words, "tort reform" would remove an important disincentive to harm the public health. Hence the role of the U.S. Chamber of Commerce in the following story: Dear Friends, The lead industry (through their US Chamber of Commerce allies) are desperately fighting back against the lead lawsuits with legal harassment.  Do not underestimate their audacity!  Great response from the Rhode Island AG though. Ralph Scott Alliance To End CLP ------ The Providence Journal Providence, Rhode Island U.S. Chamber counterattacks lead - paint suit In response to Atty. Gen. Sheldon Whitehouse's lawsuit against the industry, the state and City of Providence are being asked to provide 50 years of records that have anything to do with lead poisoning. BY PETER B. LORD Journal Environment Writer PROVIDENCE -- An arm of the U.S. Chamber of Commerce has swamped the Providence city government and a half-dozen state agencies with a massive public records request aimed at showing that the state and local governments are liable for the thousands of Rhode Island children poisoned each year by ingesting lead-paint particles. The 64-item request seeks virtually every record of lead poisoning, every policy decision, every lead test result, all medical records of poisoned children, all cleanup notices, even all the records about records -- dating back 50 years. Chamber officials said they filed the requests in response to a lawsuit Atty. Gen. Sheldon Whitehouse filed 17 months ago against many of the nation's largest paint companies, seeking damages because they manufactured the pigments that now poison children across the country. James Wootton, president of the Chamber's Institute for Legal Reform, said yesterday the lawsuit is frivolous and that Rhode Island officials should be aware that in pressing the case, they may reveal many mistakes and liabilities created by public officials in dealing with the lead problem. "We've got cities that think there is a shortcut to cleaning up their lead problem by filing suits against an industry that hasn't sold the product for 25 years," Wootton said. "We think it's outrageous that instead of doing what they are supposed to do -- cleaning up their housing stock -- they're being talked into contingency-fee lawsuits prompted by lawyers." Whitehouse said yesterday the Chamber was acting as "shills for the paint industry" and the records request showed how fearful the industry is of seeing his lawsuit proceed. (The paint industry has moved to have Whitehouse's lawsuit thrown out and a decision by Superior Court Judge Michael A. Silverstein is expected any day.) "Putting up all this bother before [Silverstein] has even decided whether this case can go forward shows they don't have much confidence," Whitehouse said. "They are acting like losers before it even goes forward." "There is a nearly comical quality to the industry flacks purporting to investigate whether the innocent Rhode Island taxpayers have done a good enough job cleaning up the mess the industry made," Whitehouse added. "It's like an arsonist checking up on how the fire department did in putting out his fire." Chamber officials said this is only the second time they've used the records request tactic. They filed a similar records request last summer against the City of Milwaukee when it was considering filing its own suit against the paint companies. A Chamber spokeswoman, Linda Rozett, said the tactic caused the city to back down. Wootten said it didn't necessarily back down, but so far the city has held off on pressing its suit and he hoped it wouldn't go further. But Linda Burke, a solicitor for Milwaukee, said both Chamber officials are wrong. The records request, she said, was an effort to intimidate the city so it wouldn't sue, and it failed. The city plans to sue anyway, she said. The Chamber submitted 64 questions to 10 city departments and when they didn't respond quickly enough after six weeks, she said, it sued them. "That was lousy," Burke said. "It was nothing more than political pressure. It came as our council was considering filing the lawsuit. And it was a crappy thing to do." What's more, she believes the tactic backfired. The information was gathered, she said. The city's Health Department alone collected 85 boxes of records. "We assembled it. It was a monumental job," Burke said. "And they never came and looked at it." Ultimately, the Chamber's lawsuit was dismissed, she said, and it was ordered to pay the city's legal costs. Meanwhile, she said, the City Council voted to hire outside legal counsel and proceed with the lawsuit. "We felt the Chamber was trying to intimidate us into not approving the lawsuit," Burke said. "It did not deter us. In fact, we're going to need a lot of these records ourselves, so it actually helped us." Wootten said the Chamber wants the records from Milwaukee and Rhode Island because it wants to see where all the federal money provided for lead abatement has been spent. He filed requests with seven departments and offices in Providence, as well as the state Department of Health, the Department of Environmental Management, the attorney general's office, the Department of Human Services and the Rhode Island Housing and Mortgage Finance Corp. (Providence has talked about suing the paint companies, but hasn't filed a suit so far.) The defendants in Whitehouse's suit are the Lead Industries Association, American Cyanimid Co., Atlantic Richfield Co., E.I. du Pont de Nemours and Co., the O'Brien Corp., Glidden Co., NL Industies, SCM Chemicals and the Sherwin Williams Co. Tiny amounts of lead can cause brain damage, learning difficulties and behavioral problems for children. The damage is worse when the poisoning occurs with toddlers whose brains are still developing, and it's more frequent at that age because small children tend to play on the ground and floors and put things into their mouths. Experts believe the primary source of lead poisoning comes from paint in older houses -- especially from doors, and walls and windows that aren't properly maintained and from soils where the lead has collected. Lead was considered an important additive for quality paints. But after increasing evidence about the dangers it creates, the industry stopped using it on toys and cribs. Finally, the government banned lead on houses in 1978. The lead industry insists it acted legally and responsibly, taking lead off the market as new evidence pointed to problems. It has won every lawsuit filed against the industry. Whitehouse and others claim the industry knew for years that lead was dangerous, but continued selling it. Lead levels have decreased around the country, but in Rhode Island last year nearly 3,000 additional children were poisoned. Just last week state Health Director Patricia Nolan warned that average childhood blood levels in Rhode Island remain 2.5 times the national average, largely because of the state's older, urban neighborhoods. Wootten said the records search is his idea. (A spokesman for the paint industry said he didn't know this records initiative was under way.) "The positive point here is we believe we need to clean this problem up and we'd like to work towards a more political solution," Wootten said. "We'd even support spending more money, if they'd just drop these lawsuits." Whitehouse declined to say how he plans to respond to the records requests, saying that would be giving away strategy to the other side. Wootten didn't mind revealing his plans. "If the deadline passes and they are not forthcoming, they can expect to be sued." News on the Santa Clara County et al Suit From: Neil Gendel [neil.gendel@consumer-action.org] Sent: Monday, January 22, 2001 2:45 PM To: leadnet@mail-list.com Subject: [Leadnet] SF Joins Litigation Against Paint Companies S.F., Oakland Join Suit Over Lead Paint Legacy Redress sought for health costs Scott Winokur Monday, January 22, 2001 San Francisco and Oakland have signed on to a lawsuit aimed at forcing the nation's chemical companies to pay for decades of health problems and pollution they allegedly caused by peddling poisonous lead paint to the American public. The city attorneys of San Francisco and Oakland -- Louise Renne and John Russo -- today planned to announce their decision to add their  names to the class action suit at a news conference in San Francisco City Hall, according to spokesmen for both. They were to be joined by Santa Clara County Counsel Ann Miller  Ravel, who filed the suit in Santa Clara Superior Court last year and  whose office is spearheading the case with the Cotchett, Pitre & Simon law firm in Burlingame. The presence of San Francisco and Oakland in court could add weight to a suit the companies have tried to portray as a futile attempt to win a multibillion-dollar legal payoff for localities, similar to what state and local governments achieved in class-action litigation  against the tobacco industry. Lead-based house paints have been banned since 1978. But scientific  studies have shown that cities with old housing stock, such as San Francisco and Oakland, continue to be subject to the paints' long-lasting toxic effects. They include severe mental and physical  problems requiring  taxpayer-funded assistance from schools and health clinics. Young children are especially susceptible. "Lead is a neurotoxin that causes a permanent reduction in a child's cognitive learning -- in other words, reduction of IQ," said Steven Schwartzberg, director of the Alameda County Lead Poisoning  Prevention Program, which has identified 4,046 children with lead  poisoning since 1992. In San Francisco, 588 lead-poisoned children have been identified since 1991, according to Deputy City Attorney Ingrid Evans, who will  be working on the case. In court documents, the paint manufacturers' accusers say that, for many years, the companies tried to systematically "thwart government regulation and full disclosure of the damage caused by their products." The companies deny wrongdoing. Attorneys for two of them downplayed  the legal significance of the move by San Francisco and Oakland in  interviews Friday. They noted that 50 similar suits filed by other cities and counties across the United States in the last 13 years  have been thrown out on the basis of a legal theory known as the "remoteness doctrine." \The doctrine holds that if the government entities themselves weren't injured, they have no claim --  notwithstanding health or remedial education costs they incurred as a result of lead poisoning  in children. "If San Francisco and Oakland are planning to jump on board, this is already a sinking ship," said Charles Moellenberg of Pittsburgh, who  represents Sherwin-Williams, the nation's largest paint company. He cited Judge Gregory Ward's decision Dec. 8 to dismiss most of the causes of action in the case, while giving the local governments the right to modify their claims and refile them. Other defendants are: Atlantic Richfield, which includes the old Anaconda Lead Products and International Smelting and Refining companies; American Cyanamid; E.I. Du Pont de Nemours; O'Brien Corp.; SCM Chemicals; the Lead Industries Association; and NL Industries,  makers of "Dutch Boy," whose onetime lobbyist, Gale Norton, is President Bush's nominee for secretary of the Interior. Other counties suing the companies, besides Santa Clara, are Alameda,  Solano, Santa Cruz and Kern. Karen Boyd, a spokeswoman for Russo,  said Friday that additional local governments and public agencies are "joining by the hour" and would be named today. Moellenberg and Tim Hardy of Washington, D.C., attorney for NL, said the decision of San Francisco and Oakland to enlist in the action would make no difference. Renne, however, predicted Friday that the paint companies would face in California something they've never faced before: a countervailing legal theory --the "shared market" doctrine -- that could hold them responsible for damages without showing that they caused them directly. The doctrine, she said, permits a court to assign legal and financial responsibility to a company for actions that the company -- or a predecessor organization -- took years ago. "This permits a plaintiff to go back in time," Renne said. She said San Francisco chose not to join the suit until Judge Ward had made his ruling on the companies' legal challenges, in order to determine if the Santa Clara County action would survive.A longtime health advocate in San Francisco, who had criticized Renne for not joining the suit last year, welcomed her move Friday. "These companies have literally stolen the minds of kids for decades and they ought to pay for what they've done," said Neil Gendel, executive director of the Healthy Children Organizing Project."We can't reverse the damage they have done to kids already; many of them have grown up. But the problem is they're doing it to more kids today," Gendel said. "The least these companies can do now is pay to start really dealing with the problem." ******************************************************************* ***** * Neil Gendel, Director                                                * * Healthy Children Organizing Project   415-777-9648 voice             * * CONSUMER ACTION                       415-777-5267 fax               * * 717 Market Street                                            * * Suite 310                       neil.gendel@consumer-action.org      * * San Francisco, CA 94103    neil.gendel@consumer-action.sf.ca.us * ******************************************************************* ***** Milwaukee files -----Original Message----- From: Ralph Scott [mailto:rscott@aeclp.org] Sent: Monday, April 09, 2001 10:16 AM To: rscott@aeclp.org Subject: [Leadnet] Milwaukee to file suit against lead pigment makers Dear Friends, Milwaukee will file a lawsuit against two lead pigment makers today.  The suit is scheduled to be announced at a City Hall press conference this morning. For background information about the growing wave of lawsuits against the lead pigment companies, see the Alliance's web site (www.aeclp.org) and click on the "Legal Remedies" link. Ralph Scott Alliance To End CLP _____ City to file lead lawsuit today 2 paint companies targeted in new strategy By GREG J. BOROWSKI of the Journal Sentinel staff Last Updated: April 8, 2001 The city will join a growing legal battle against the paint industry today, with a lawsuit that would force the cleanup of more than 40,000 central city homes where children are at risk for lead poisoning, But while recent lawsuits by other cities and states targeted virtually every major company that has sold lead-based paint, Milwaukee's lawsuit will list only two - Houston-based NL Industries and Madison-based Mautz Paint. More defendants could be added. Attorneys involved in the lawsuit would not discuss strategy, but it appears to be an attempt to pit various paint companies against each other, preventing the unified defense the industry has presented in other lead lawsuits. Mautz and NL Industries, for instance, could easily argue they are not solely responsible for the old paint in Milwaukee homes, and thus should not be held entirely liable for the tens of millions of dollars needed to address the problem. "I'm satisfied they are the defendants for the time being," said Ted Warshafsky, lead local attorney among the outside law firms pursuing the case for the city. "On the other hand, Mautz and National Lead are perfectly able to bring in a third-party defendant and say, 'We shouldn't have to be burdened alone. You should pay your share.' " The lawsuit, to be filed today, argues that the companies continued to put lead in paint long after they were aware of its hazards, yet still advertised the paint as safe and, even today, don't put warnings on cans that scraping old paint can generate harmful, lead-laden dust. The complaint, a copy of which was provided to the Journal Sentinel, does not seek a specific level of monetary damages, but calls for the cleanup of homes where lead-paint hazards exist - a task that could cost more than $100 million. It also asks for punitive damages, which, if the case ever gets to a jury, could be substantial. In filing the lawsuit, which the Common Council approved last fall after months of indecision, Milwaukee joins a small but growing number of states, cities and counties that have taken on the paint industry. So far, government litigation has not succeeded. Critics say the suits provide false hope for residents and amount to lawyers playing a lottery, hoping to cash in when it becomes easier - and cheaper - for the paint companies to settle rather than fight the lawsuits. While the effort echoes the victorious legal battle by Wisconsin and other states against the tobacco industry, most give it less chance of success. One major difference: While tobacco companies continue to manufacture a dangerous product, lead was removed from paint in the 1950s, decades before it was formally banned in 1978. "I guess they hope to hit the jackpot somewhere along the way," said Richard Thornburgh, a former U.S. attorney general who now represents NL Industries and several other paint companies. "So far, it's a pretty daunting track record." He was asked to comment in general about lead lawsuits, before the details of the Milwaukee suit were available. The city plans to file the lawsuit today in Milwaukee County Circuit Court, and announce it at a City Hall news conference. Like other communities, the city will use outside law firms to pursue the case on a contingency basis, meaning they will get paid only if they force a settlement or win a judgment. "I don't know it's uphill," said Mayor John O. Norquist. "People have said that about other liability cases, like tobacco. They said it was uphill and then all of a sudden it was downhill." Common Council President Marvin Pratt, whose public wavering nearly killed the lawsuit last fall, now says he is confident victory lies ahead. "I had some reservations, but it is a problem that is a significant health hazard for a lot of children," he said. "Anything we can do, even long-range, to find a solution, I think we should do." By pursuing only two companies, and by seeking to have lead paint declared a "public nuisance," the city lawsuit, for now, sidesteps a critical question and major hurdle other lawsuits have faced: Since the hazardous paint was applied to the walls of homes and apartments decades ago, how do you determine which companies sold the paint involved? Other actions have tried the "market share theory," in which liability is apportioned according to companies' shares of the local market during a given period. Indeed, in a report to the Common Council last year, lawyers said Wisconsin market-share precedents were especially favorable. The report also named five companies the attorneys considered primarily responsible for lead-based paint, including NL Industries, which manufactured lead pigment in addition to selling paint. Mautz wasn't listed; it may have been included in the lawsuit, in part, because it is a Wisconsin company, easing some jurisdictional issues. Market share could still come into play, if Mautz and NL Industries bring other companies into the litigation. Those with limited responsibility could be more willing to settle, or to help establish the greater responsibility of other companies. Industry representatives, though, have been adamant there will be no settlement, since that would invite more lawsuits. The lawsuit will pursue several causes of action, including defining lead-based paint as a public nuisance. If accepted by the courts, that could mean the city would not have to rule out other factors as causes of lead poisoning. It would just have to establish lead-based paint is a hazard in and of itself. The lawsuit also alleges the two companies were part of a conspiracy with other companies and industry groups to conceal the dangers of lead and argues the paint itself was an "unreasonably dangerous product due to inadequate warnings." Thornburgh said those arguments have failed elsewhere. "The arguments these lawsuits make are pretty  predictable," he said. "The nuisance has been created, not by the manufacturer of the paint, but the failure to maintain the paint, which creates responsibility on the part of the property owners." Last week, a Rhode Island court allowed a lead lawsuit filed by the state to go forward, which supporters declared a major victory. Paint attorneys, though, saw it as a victory as well, since the judge ruled the state could not seek repayment of special education costs and dismissed the suit's product liability claims. In a Cleveland case filed on behalf of several lead-poisoned children, a judge last week declined to give it class-action status, which would have greatly increased the exposure of the defendant paint companies. Although Milwaukee has a nationally recognized program to address childhood lead poisoning, about 5,750 children have elevated lead levels in their blood. The percentage of children who test too high dropped from 73% in 1992 to 16% in 1999, but it remains much higher than the national average of 4.4%. Lead poisoning can stunt growth and cause learning problems for children. The city's research has shown that chipping and flaking paint on window frames - and even the dust generated when windows are opened or closed - are prime causes of lead poisoning. In Milwaukee, at least 40,000 homes - mainly in the central city - are considered most at risk. Last year, the city received a $3 million federal grant, but it will cover cleanup in only about 1,100 homes. While backers portray the battle as a crusade for the rights of children, critics say the the communities are just looking for easy money. Because of the contingency fee arrangement with the outside law firms, supporters say the city has little risk if the case fails, but could be a big winner. Critics, including some aldermen who adamantly fought the lawsuit measure, note the city will have to pay the costs associated with employee time needed to locate documents, and for workers testifying in pretrial depositions or in court. -------------------------------------------------------------------------------- ----- Appeared in the Milwaukee Journal Sentinel on April 9, 2001 NAACP president pressures paint industry to act on lead-based paint hazards By Deborah Kong, Associated Press, 7/11/2001 05:43 NEW ORLEANS (AP) Nancy Pavur became aware of the hazards of lead-based paint when her three children were exposed to high levels of lead at their house two years ago. She hopes the NAACP's threat to sue paint companies will bring national attention to lead-poisoning victims and help save other children from such dangers. ''It's very stressful to know it's irreversible,'' said Pavur, whose children are still being treated for elevated blood lead levels. ''There are so many children exposed to this.'' NAACP president Kweisi Mfume said Tuesday that even though paint companies have contacted him, his group is still preparing to sue the industry unless it becomes more involved in lead paint abatement and treatment for victims. An industry representative said paint companies want to work with the NAACP, but a lawsuit would have a ''chilling effect on cooperative solutions.'' ''The industry ought to understand there are consequences in all of this that cannot be delayed,'' Mfume said. But Tom Graves, vice president and general counsel for the National Paint & Coating Association, said a class-action lawsuit would be a waste of resources. ''The attention to the issue is great and we welcome it,'' Graves said. ''The lawsuit is not the right approach.'' Lead paint has been linked to lower IQ, mental retardation, learning difficulties, behavioral problems, stunted growth and hearing loss. At high levels, lead is also believed to cause kidney damage, seizures, coma and even death. Manufacturers stopped making lead paint decades ago and the product was banned for use as interior paint in 1978 an action Graves said his group supported. Yet lead paint is still present in many older buildings, and children are at risk of ingesting the toxin. Nearly 1 million children suffer from lead poisoning across the nation, said Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning. Rhode Island and the city of Milwaukee have pending lawsuits against paint makers, claiming the companies knew or should have known about the damaging effects of lead paint. On the Net: NAACP: http://www.naacp.org The American Public Health Association Urges the Massachusetts Attorney General to Sue the Lead Industry > American Public Health Association > 800 I Street NW · Washington, DC 20001-3710 > (202) 777-APHA · Fax: (202) 777-2534 · comments@apha.org > · www.apha.org > August 7, 2001 > Massachusetts Attorney General Tom Reilly One Ashburton Place Boston, MA 02108-1698 > Dear Attorney General Reilly: > On behalf of the American Public Health Association, the largest and  oldest organization of public health professionals in the nation, representing more than 50,000 members from over 50 public health  occupations, I write to encourage you to file suit against the lead paint  industry, as other states and cities are now doing, to recover  Massachusetts' costs for lead poisoning prevention, medical treatment, and  hazard reduction. Lead paint manufacturers, despite the knowledge of the  hazards, continued campaigns to promote and increase the sale of  lead-based paint and minimize the public and governmental knowledge of the  hazards. APHA believes it is time for Massachusetts and other states to hold this industry responsible for both the negative health and economic costs it has inflicted upon our children and communities. > In 1997, APHA adopted a policy calling on the lead paint industry to support efforts to address the national child lead poisoning problem.  Among other things, the policy supports efforts [to] increase  the resources available to lead hazard prevention through litigation against the manufacturers of products that contain lead. > Children who live in poorly maintained, older housing are at disproportionate risk of being lead-poisoned by lead paint, the single most important source of lead poisoning in children in the U.S. Low-level lead exposure can cause reduced IQ and attention span, hyperactivity, impaired growth, reading and learning disabilities, hearing loss, insomnia, and a range of other health, intellectual, and behavioral effects. Along with these health effects, lead poisoning also comes with an economic burden including the cost of special education, developmental testing, early education intervention, attention to juvenile delinquency, and lead hazard control (including abatement) in both public and private housing. Additionally Massachusetts has spent millions of dollars removing lead from public schools, community centers, hospitals and other public places. > We look forward to working with you in moving forward with this effort to hold the lead  paint industry accountable for its actions. Please feel free to call me at any time if you would like to further discuss APHA's policy on this important public health matter. > Sincerely, > Mohammad N. Akhter, MD, MPH Executive Director DELAY TACTIC FOILED IN RHODE ISLAND FOR IMMEDIATE RELEASE CONTACT: Jim Martin October 29, 2001 Tel: (401) 274-4400 ext. 2336 Fax: (401) 222-1302   PRESS RELEASE RI Supreme Court Rejects  Latest Lead Paint Manufacturers' "Delay Tactic" Providence - The Rhode Island Supreme Court today denied a request by the lead paint manufacturers that it review a Superior Court ruling which allowed the Attorney General's lead paint lawsuit to proceed. The decision allows AG Whitehouse to continue to argue in his lawsuit that the lead paint poisoning crisis the manufacturers have caused in Rhode Island is a public nuisance. The manufacturers argued to the Supreme Court that the law of product liability should apply and not public nuisance law. The Supreme Court rejected the defendants' petition without comment. Had the Supreme Court granted the defendants' petition for writ of certiorari on this issue, it would have interrupted the progress of the lead paint case toward trial, and given the defendants a delay of a year or more. Attorney General Sheldon Whitehouse alleges in the State's lawsuit against the lead paint manufacturers and their association that, due to their conduct, one out of five children entering kindergarten in Rhode Island had elevated levels of lead in their blood, which constitutes a public nuisance. In addition, an estimated 75% of the homes in Rhode Island may contain lead paint.  Attorney General Whitehouse said, "Another delay tactic by the lead paint manufacturers has been headed off. I am hopeful that we have seen the last of the delays and that we can now proceed to trial. I look forward to the day the lead paint manufacturers are finally prepared to accept a fair measure of responsibility for their actions." Associate Justice Michael Silverstein, who is hearing the matter in Superior Court, has scheduled a pre-trial conference for November 30, 2001.           MORE NEW JERSEY LAWSUITS N.J. suits mount against lead industry 12/23/01 BY JUDY PEET STAR-LEDGER STAFF The lead paint wars have come to New Jersey. For more than a decade, New Jersey officials watched and waited as municipalities throughout the nation filed suits against the manufacturers of lead pigment, alleging they knew about the dangers of their product and should bear the financial burden for clean-up, which has been estimated in the billions. Two weeks ago, Newark made the state's first foray into mass litigation, filing suit against the Lead Industries Association, a nonprofit trade group, as well as chemical companies including DuPont, American Cyanamid and Sherwin-Williams. The battle escalated last week, when seven other New Jersey municipalities and Union County followed suit, with more plaintiffs expected to file before the end of the year, said attorney Michael Burakoff, who handled all the cases except Newark. Together, the suits represent nearly half a million New Jersey houses that are potentially hazardous because they are old enough to contain lead paint. The stakes may rise much higher if the state decides to join the battle, an action strongly favored by the state Department of Community Affairs and, reportedly, by members of governor-elect Jim McGreevey's transition team. McGreevey could not be reached for comment, but a spokeswoman for Attorney General John Farmer Jr. did confirm that "the matter is under discussion." Former DCA Director Jane Kenny -- who left state office earlier this month to become regional director for the EPA -- repeatedly urged Farmer to file suit, most recently in a letter last May. "Lead pigment manufacturers knowingly sold a dangerous product to property owners without disclosing those dangers, and they have yet to be held responsible for their fair share of resources necessary to combat lead paint hazards in pre-1978 housing," Kenny wrote. "As you may recall, I previously requested the state pursue legal action . .. and again affirm my strong recommendation we actively engage in this litigation," Kenny added. Representatives for the lead manufacturers, who have successfully defended themselves in more than 40 out of the 50 cases filed against them since 1987, called the New Jersey lawsuits "the worst case yet of lawyer-generated lead pigment litigation that will do nothing to protect kids. "Companies that 50 years ago made lead pigment used in interior paint are not responsible for hazards today from peeling and flaking lead paint in pockets of poorly maintained housing," said former Maine Attorney General Andrew Ketterer, who is an adviser to the defendants. "Property owners who have allowed their properties to fall into disrepair -- and governments that have looked the other way -- are responsible," Ketterer added. "Costly, time-consuming litigation will not clean up a single property." Lead poisoning is the leading environmental disease of children. Although poisoning rates have dropped dramatically since lead was banned from paint and gasoline in the 1970s, lead poisoning still affects nearly 1 million children nationally each year, and several million more are exposed to enough lead to impair their ability to think and learn. In New Jersey, according to a recent report from the state Department of Health, nearly 1,000 children were poisoned and another 4,669 had unacceptably high levels of lead in their blood for the year ending June 30, 2001. The number may be substantially higher, but two out of every three children in the highest-risk age bracket were never tested. New Jersey, like many northeastern states that formed the basis of industrialized America, is saturated with lead, an element that scientists have consider highly toxic for more than a century. Lead is everywhere in New Jersey but most prevalent in the 2 million houses built before 1978, when the federal government banned lead paint. Lead paint, when it deteriorates, can produce deadly chips or nearly invisible dust that is dangerous to people of any age. It is most dangerous in young children, where it can lower intelligence, impair cognitive function, increase hyperactivity and, in high enough doses, cause kidney failure and death. Lead poisoning always has been considered an urban problem. The majority of New Jersey childhood lead cases were reported by its cities. But there was not one county in New Jersey last year that didn't report a case of childhood lead poisoning. The plaintiffs in the newly filed New Jersey suits are Newark, Passaic, Irvington, Bayonne, Jersey City, Hillside, Linden, Union City and Union County. More than 90 percent of the housing in every one of those municipalities is old enough to be contain lead paint. The pigment manufacturers insist that government officials must take responsibility for failing to screen children, inspect houses where children have been poisoned and force landlords to clean up the hazards, a process that often costs upwards of $15,000 per unit. New Jersey officials have been criticized by the Centers for Disease Control and Prevention and the American Civil Liberties Union for poor enforcement of lead paint regulations. An investigation by The Star-Ledger, published last month, found that barely one-tenth of 1 percent of the potentially tainted houses have been abated. Union County Freeholder Chairman Al Mirabella said the county decided to file suit because it is time to hold lead paint makers accountable for the "lives they ruined and the damage they have caused." "While the industry claims it has never lost a case, no public nuisance case brought by a state, county or city has yet gone to trial," noted Freeholder Nick Scutari. "We believe the facts and justice are on our side." | Not all local officials agree. Mayors from Elizabeth and Trenton issued a joint statement Friday, announcing they would not file suit. "These lawsuits divert valuable resources and divert attention," said Trenton Mayor Douglas Palmer. "The New York City Housing Authority has been tied up in court for over a decade . . . We cannot in good conscience pursue that path in New Jersey." Palmer and Elizabeth Mayor Christian Bollwage said they will instead "aggressively address the issue by leveraging already extensive government and community programs," for inspection, screening and abatement. Trenton and Elizabeth health departments were among the top 10 health departments in the state with reported cases of childhood lead poisoning in New Jersey. Last year, one abatement occurred in each city.

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Current Events   A HISTORIC EVENT IN RHODE ISLAND: Jury holds 3 ex-makers of lead paint liable Providence Journal, 2/22/06 PROVIDENCE -- A jury has decided that three former makers of lead paint created a public nuisance that has poisoned thousands of Rhode Island children, and continues to do so. In a highly anticipated verdict announced shortly before noon today, the three companies found responsible are Sherwin-Williams, N-L Industries and Millennium Holdings. The jury found that one of the four companies named in the landmark suit brought by the state -- Atlantic Richfield -- was not responsible. The verdict means the companies that once made lead paint and pigment could be held responsible for millions of dollars in clean-up and mitigation costs -- though the state never put a dollar value on its lawsuit. The jury's decision is also important because it could affect similar lawsuits in other states. The sale of lead paint was banned in 1978 in the United States, after studies showed that it can cause serious health problems in children. But in Rhode Island, which has an old housing stock, lead paint still exists in many homes. In 1999, Rhode Island became the first state to sue the lead paint industry. "This is sweet. I am overjoyed," said the state's former attorney general, Sheldon Whitehouse, who brought the original lawsuit that ended with a hung jury in 2002. Whitehouse, a candidate for Congress, said today's verdict was especially dramatic because the jury first announced the "not responsible" finding for Atlantic Richfield. Current Attorney General Patrick C. Lynch hailed the verdict as historic and said in a statement that the decision would "help make Rhode Island a safer and better place to live." Bonnie Campbell, a spokeswoman for the companies and a former attorney general of Iowa, said, "This is but one step in a lengthy process and there are a number of issues still to be decided by the court." Although the jury said that the three other companies must be held responsible for abatement -- or repairing damages -- they did not award compensatory damages. Because of that, Superior Court Judge Michael Silverstein ordered lawyers to report back to court Monday with their arguments on whether punitive damages should be awarded. If Silverstein decides they should, the jury will return Tuesday to begin deliberating what those damages should be. The case went to the six-person jury Monday, Feb. 13, after 15 weeks of trial. The state contended that the four companies created a public nuisance by marketing the lead-paint pigments that helped poison more than 37,000 Rhode Island children during the last 11 years. The state also argued the paints remain on more than 240,000 houses and threaten future harm as they deteriorate. Attorney General Lynch has estimated abatement could cost billions of dollars. The verdicts had an immediate impact on Wall Street. Sherwin Williams' share price dropped more than 15 percent to $44.47 as of about 1:30 p.m. NL Industries fell 5 percent to $13.64. The 2002 trial ended in a hung jury after four days of deliberations. State's lawyers presented historians, doctors and contractors to try to persuade jurors that the companies knew about the hazards and tried to hide them. The paint makers presented no witnesses. In closing arguments, company lawyers insisted that the state didn't prove a case against any of them. They said the state failed to convincingly place any of their paints on Rhode Island buildings and that there is no public nuisance in Rhode Island because childhood blood-lead levels have declined so dramatically. In closing arguments, defendants argued that the entire time they sold lead-based paints it was legal, but Judge Silverstein swept aside that defense. "The fact that the conduct which caused the nuisance is lawful, does not preclude liability," Silverstein said. A large part of the state's evidence focused on an industry group called the Lead Industries Association that heavily promoted the use of lead paint while campaigning to cover up reports of lead-poisoned children. Silverstein reinforced a previous ruling he made that favored the defendants by telling the jury that "mere membership in a trade association is not sufficient to impose liability on any defendant." -- With reports from the Associated Press and Journal staff writers Paul Edward Parker and Peter B. Lord ***************************** Lead-paint protesters disrupt meeting Monday, October 24, 2005 Jesse Tinsley Plain Dealer Reporter (Cleveland) A noisy group of more than 400 activists crashed a staid business meeting of national paint-industry executives Sunday at the Renaissance Cleveland Hotel, demanding accountability for decades of lead paint sales. The National Paint & Coatings Association was caught off guard when members of ACORN - the Association of Community Organizations for Reform Now - squeezed into the third-floor meeting room on Public Square armed with a half-dozen bullhorns. After raising a racket that put the meeting on hold, the crowd departed when J. Andrew Doyle, the paint association president, agreed to speak with a small group of ACORN leaders. Doyle went to a side room and signed a written agreement to meet in Washington, D.C., with leaders of the protest group within 30 days to listen to their concerns about lead paint. His signature, however, hinged on the condition the ACORN members - who clogged the hotel's lobby - refrain from further disruptions of the paint association's annual meeting. Visibly disturbed, Doyle told the protesters, some of whom traveled from as far away as the nation's capital, that they could have made their point in a better way. Doyle said he was vaguely aware of ACORN, a national community organization of low- and moderate-income families that works on social justice issues such as better housing and health care. Marcel Reid, president of D.C. ACORN, said she and other members were pleased with the turnout and Doyle's agreement to meet with the group's leaders. As it happened, discussion about lead paint was already on the paint association's agenda. After the agreement, ACORN members carrying banners, placards and bullhorns marched from Public Square to a Sherwin-Williams Co. office on nearby Prospect Avenue for a brief protest. Although the office was closed, the activists shouted, "We are ACORN, mighty, mighty ACORN!" and waved banners that said, "They Knew for Decades" about the health problems associated with lead paint. The group claims paint companies continued to sell lead-based paint after learning it posed serious health risks to children, such as lead poisoning. *********** NJ Appeals Court Permits Lawsuit by Cities The Star-Ledger Court renews towns' suit against lead paint makers Thursday, August 18, 2005 BY ROBERT SCHWANEBERG Star-Ledger Staff A state appeals court yesterday revived a lawsuit aimed at forcing companies that made lead paint to bear the enormous costs of removing it from the walls of homes and apartments and treating lead-poisoned residents in 22 municipalities and four counties. A Middlesex County judge had dismissed the lawsuit almost three years ago, saying the local governments had overstepped their authority in bringing it. The three-judge appeals panel disagreed and ruled that Newark, the counties of Essex and Union and the other governmental bodies have "inherent police powers" to sue to stop a public nuisance, such as a health threat. Lead poisoning, particularly in children, can cause neurological, developmental and other health problems. Lead paint has been banned in New Jersey since 1971 and nationwide since 1978. Chris Perrucci, a lawyer for seven of the local governments that went to court, said: "We're very pleased that this matter will at least have the opportunity to go to a jury." At trial, he said, the towns will argue that "the paint industry was aware that their product was harmful to small children but did not reveal this known danger to consumers." In that respect, the case is similar to earlier lawsuits against the asbestos and tobacco industries, said Perrucci, whose law firm has offices in Phillipsburg and in Bethlehem, Pa. Bonnie Campbell, a spokeswoman for four of the companies being sued, said yesterday's ruling was "truly a preliminary, procedural step. All it does is send us back to the lower court." She said the defendants have "many procedural options available" before the case would go to trial and will "vigorously defend against plaintiffs' claim." The lawsuit is one of scores that have been filed by governments nationwide. So far, they have had at best modest success. Many were dismissed by trial judges and are "in limbo right now" as appeals courts consider them, according to Brian Gumm, a spokesman for the Alliance for Healthy Homes in Washington, D.C., which tracks such litigation. A lawsuit by Rhode Island against lead paint manufacturers ended in 2002 with a hung jury. Last June, Rhode Island Attorney General Patrick Lynch dropped DuPont Corp. as a defendant after it agreed to make a "multimillion-dollar contribution" to a nonprofit group that works to protect children from exposure to lead. A retrial of the remaining defendants is scheduled for October, Gumm said. The Wisconsin Supreme Court ruled 4-2 last month that a Milwaukee teenager can sue lead paint manufacturers even though he cannot identify the company whose paint he claims poisoned him as a child. *********** Jul 15, 2005 Court allows teen to sue lead paint pigment makers for his injuries By JR ROSS Associated Press Writer MADISON, Wis. (AP) -- A Milwaukee boy can sue the manufacturers of a lead paint pigment for his injuries even though he cannot prove which ones made the pigment that may have sickened him, a split Wisconsin Supreme Court ruled Friday. It is the first time a state has found manufacturers could be held liable in such a lawsuit, and one of the dissenting judges said it would make Wisconsin "the mecca for lead paint suits." Still, the court's 4-2 ruling allows 15-year-old Steven Thomas to continue with his lawsuit against companies that made the pigment. Thomas claims as a toddler he ingested lead paint at two homes built in 1900 and 1905, leading to permanent mild retardation. Defendants include the Sherwin-Williams Co., ConAgra Grocery Products Co., American Cyanamid Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries Inc. and SCM Chemicals Inc.   Thomas's attorney, Peter Earle, said the manufacturers had long known the dangers of the pigment but continued to put the product on the market anyway. "Because they share culpability for creating this hazard to the public, they now have to account for that," Earle said. The court extended the "risk contribution theory" to the manufacturers of white lead carbonate, a pigment once commonly used in lead paint. According to that principle, those who cannot trace their injuries to a specific company can still collect damages if they can prove a product was dangerous, it created their injuries and the defendant negligently produced or marketed it. The court also ruled Thomas could sue the manufacturers even though he already received more than $324,000 from the landlords of the two homes where he believed he was sickened. But it rejected his claims the companies conspired to market the product to the public despite the dangers. Bonnie Campbell, spokeswoman for Atlantic Richfield, Sherwin-Williams, NL Industries and SCM Chemicals' successor Millennium, said the court's decision undermined laws passed by the Wisconsin Legislature making property owners responsible for lead paint hazards. "Those who put children at risk by not maintaining their properties are responsible and should be held accountable," said Campbell, a former Iowa attorney general. Attorneys representing Thomas and the other paint companies did not immediately return calls Friday from The Associated Press seeking comment. In his dissent, Justice Jon Wilcox wrote the decision raises serious concerns about fundamental fairness because it creates the possibility some defendants may be held liable for injuries they did not and could not have caused. He wrote the paint manufacturers "can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market." But Justice Louis Butler wrote the manufacturers long knew of the dangers, pointing to a 1904 article in a Sherwin-Williams publication publicizing the hazards. He wrote the record shows at a minimum the manufacturers are culpable for contributing to the creation of risk and injury to the public. The manufacturers "are essentially arguing that their negligent conduct should be excused because they got away with it for too long," Butler wrote. ********** The Lead Poisoning Problem is Not Going Away Any Time Soon > September 13, 2003 New York Times > The Plague of Lead Poisoning The federal goal to eliminate lead poisoning in children by 2010 seemed achievable when it was set in 1991. With bans on leaded gasoline and paint in place, progress has been made - the number of cases detected has fallen by 50 percent. Still, hundreds of thousands of small children, most of them black, Hispanic and Asian, face one of the most preventable environmental hazards in the nation by simply breathing inside their homes. > Tests have shown that more than 400,000 children 1 to 5 years old have blood  lead levels above that considered toxic by the Centers for Disease Control - and that number would be much greater if the index was lowered, as many experts wish, and if more children were regularly tested. Most cases occur in large and mid-size cities where formerly good housing is deteriorating. When lead paint peels or is improperly removed, or even when it is scraped as a window is opened, it unleashes a dust fine enough to be both ubiquitous and undetected as children crawl on it and touch it. It takes very little ingested lead to damage the still-forming brains and nerves of children or fetuses, and such damage can lead to permanent and debilitating health and learning problems, like lower IQ's and retardation, and behavioral problems. > Where testing has been done, patterns emerge. In Chicago, one in three children tested positive for lead poisoning, mainly in poorer neighborhoods, causing the city to push for increased testing and education. Similar hot spots were found in Providence, Philadelphia and St. Louis. But for sheer density of risk, nothing compares with New York City because of its huge stock of older homes and a lead belt stretching across underserved poor, minority and immigrant communities in Brooklyn and Queens. New York was years ahead of the federal government in outlawing lead paint in 1960. But the city faltered four years ago, passing a law that failed to address the danger of lead dust. That law was struck down on a technicality in the courts this summer, leaving a void on an urgent issue. > A bill before the New York City Council - sponsored by Bill Perkins, who represents parts of Harlem and the Upper East Side - would go a long way to protect those most vulnerable by clearly labeling lead dust a health hazard.  It also corrects a lapse in the previous law, which shielded landlords from liability. The new law would place the burden of fixing lead problems on building owners, who would have to act in a timely way, using trained workers. City officials say the bill is too expensive and goes too far, including its provision to increase the upper age range of monitored children to age 7, from age 6. > Gifford Miller, the Council speaker, has been criticized for not moving more quickly on the legislation, but he now appears to agree with much of what it seeks to accomplish and has offered improvements, like adding a focus on primary prevention. In New York's current fiscal squeeze, City Hall is right to worry about costs, but the mayor's economists also need to consider the long term. Lead poisoning does not typically kill. Instead it leaves a lifetime of expensive concerns - like special schooling and medical care - that society is left to absorb. This is a problem with a clear solution if those in government do the right thing now, while the goal is in sight. *********************************** Lead Paint Industry Gets "Dirty Dozen Award" from Maine Community Group for Poisoning Children MAINE LEAD ACTION PROJECT P.O. Box 1218 Portland, ME 04104 (207) 871-7905 FAX: (207) 871.7905 www.maineleadaction.org leadsafe@gwi.net "Caring For Maine Children, One House at a Time" For Immediate Release April 8, 2003 Contact: Maggie Drummond Maine Toxics Action Center 871-1810 Susan Thornfeldt Maine Lead Action Project 838-9128 NEWS RELEASE Dirty Dozen Award "honors" Lead Paint Industry for #1 children's environmental health problem Group warns homeowners, landlords, contactors and parents of continued danger Portland - Local advocates gathered today with the Maine Toxics Action Center at the site where two children contracted lead poisoning to "honor" the Lead Paint Industry for their role in creating the #1 children's environmental health threat in Maine and the country. The awards highlight twelve facilities, sites or products that pose a threat to public health, the environment and/or worker health & safety. In addition, the awards highlight situations where there has been a lack of action on part of state and local agencies, officials or corporations to effectively remedy the problem. "The Lead Paint Industry fully deserves this award for knowingly marketing a product they knew was dangerous," said Susan Thornfeldt, Director of the Maine Lead Action Project whose two children suffered from lead poisoning. "They have for decades blamed 'ineducable parents' and 'negligent landlords' for the epidemic of childhood lead poisoning in America and have yet to offer any accountable or tangible solution to help end this pervasive public health problem." Young children exposed to small amounts of lead, a powerful neurotoxin, may be at an increased risk of developing permanent learning disabilities, reduced concentration and attentiveness and behavior problems which may persist and adversely affect the child's chance for success in school and life. Maine children are at particularly high risk for lead poisoning due to our older housing stock, renovation activity and occupational exposure. "When my daughters were lead poisoned, I dealt with a landlord who tried to both bribe and bully me to stop me from getting them tested and treated; but I believe that he is the exception. Most landlords want to be conscientious. Placing the responsibility where it belongs, with companies like Sherman Williams and Dutch Boy, is a giant step towards providing greater resources to help landlords and homeowners maintain the integrity of their buildings, and thus prevent the continued poisoning of our children.", said Heather Curtis of the Portland Tenants Union. "The Dirty Dozen Awards 'honor' twelve toxic threats, like this one, that can be found right in our own homes and backyards," said Maggie Drummond, Maine State Director of Toxics Action Center. "Parents and landlords should be aware of the dangers that lead poses to our children so that we can take the proper precautions to protect their health." ### NEWS ADVISORY April 7, 2003 Dirty Dozen Award "honors" the Lead Paint Industry for their role in creating the #1 Children's Environmental Health Problem Group warns Maine landlords, homeowners, contractors and parents of the continued dangers WHAT:         MaineToxics Action Center will present it's annual "Dirty Dozen" award to the Lead Paint Industry who was nominated by the Maine Lead Action Project, a state-wide nonprofit organization. The list of the "honorees" includes a dozen sites of facilities that pose a threat to public health, the environment or worker health & safety, and where there has been lack of action on the part of state or local officials, agencies and corporations to correct the problem. WHEN:     Tuesday, April 8, 2003; 10:00 AM WHO:      Susan Thornfeldt, Maine Lead Action Project                    Heather Curtis, Portland Tenants Union                    Mike Belliveau, Environmental Strategy Center                    Maggie Drummond, Toxics Action Center INVITED:   Andrew Ketterer, Former Maine Attorney General and current lobbyist for the Lead Paint Industry WHERE:   The residence of Susan Thornfeldt and Greg Dasch                130 Highland Street, Portland Maine VISUALS:  Picket fence with lead industry propaganda, Dutch Boy with paint can 'whitewashing' the well documented medical/scientific facts about childhood lead poisoning. CONTACT: Maggie Drummond                 Toxics Action Center, 207-871-1810                 Susan Thornfeldt                 Maine Lead Action Project                 207-838-9128                 207-871-7905 ### ******************************* SHERWIN-WILLIAMS CO. ATTEMPTS TO SPRUCE UP ITS IMAGE Below is a memo from the Alliance to End Chilhood Lead Poisoning regarding a new effort by the paint company to improve its public relations. TO:  Lead Poisoning Prevention Advocates FR:  Eileen Quinn and Ralph Scott, AECLP RE:  Sherwin Williams' Outreach to City Governments Sherwin Williams Paint Company is talking to some city governments about their ideas for a "lead-safe marketplace."  The central feature of the plan is a discount price on Sherwin William paints for lead abatement projects, which will be of very limited value.  The Detroit Free Press wrote about the company's efforts last week: http://www.freep.com/news/locway/deal24_200302 24.htm.  We also heard that they are proposing a similar program to Minneapolis. We're writing to encourage you to find out if Sherwin Williams is in discussions with your city government, to make sure city officials do not make a bad deal, and to help ensure that any deal is not oversold to the public and the press. Please try to find out as much as you can about the specifics of the deal.  Help city officials appreciate that any deal will be used by the company as a public relations bonanza. A few key points that might be worth using in your discussions with city officials: - Sherwin Williams is only doing this because of the mounting pressure they feel from the litigation around the country.  (FYI, the Rhode Island suit is likely to be retried this year). - This program is a drop in the ocean compared to what's needed.  Discounted paint and other materials will have little, if any, impact on improving safety in [your city's] housing containing lead-based paint.  Make sure that city officials understand that paint and materials are a minimal percentage of the cost of making housing lead-safe. - Truly solving this problem requires industry to take substantial responsibility for providing resources. There are simply not enough public funds to solve this problem, especially now that government budgets are so constrained.  Industry should pay its fair share and that means serious dollars for solutions, not just some discounts on supplies. - Governments and paint industry and property owners all have to put more dollars on the table for removing lead hazards.  While taxpayers and property owners are already footing a great deal of the bill, industry continues to avoid responsibility. - No deal should be made that forecloses a government's option to pursue legal action against Sherwin Williams or any of the companies that manufactured lead-based paint. If city officials are intent on making a deal with the company, no doubt they will try to make it sound like a big win for the city. You can use similar messages in outreach to reporters to help the press understand the company's self-interest and the limitations of the new program.  By providing the details about the size of the problem contrasted with the scale of the company's offer, you can help set the record straight. Please share with us whatever you learn about Sherwin Williams having discussions in your city and how city officials are responding to the company's overtures.  If we can provide additional information or assistance, please let us know. ******************************** Historians say paint makers knew about poisonings Two historians said that in spite of this week's mistrial, the state should continue to try to hold paint manufacturers responsible for cleaning up houses containing lead paint. 10/31/2002 BY PETER B. LORD Journal Environment Writer (Providence Journal) PROVIDENCE -- For years, spokesmen for the paint industry have said they didn't know lead paint was harmful to children and when they discovered it was, they took it off the market. But two historians speaking here yesterday say that just isn't so. In the 1920s, medical journals around the country ran stories on lead-poisoned children, say historians Gerald Markowitz and David Rosner. During that same period, the industry launched a decades-long marketing campaign that portrayed lead as sanitary and healthful for children. "The attempt to sell lead, combined with the medical literature about its dangers, reported in internal company memos, starts to give you an idea of who is responsible for a huge American tragedy," Rosner said. "And this tragedy will stay with us as long as there is lead on the walls." Markowitz, a professor of history at John Jay College, and Rosner, a professor of history and public health at Columbia University, published a book last month about pollution caused by the vinyl chloride and lead industries. The lead section was based on internal company memos, meeting minutes and reports that were subpoenaed for a New York lawsuit against the industry. Markowitz and Rosner said lawyers invited them to study the documents and to prepare an affidavit describing what they learned. That research lead to the book. The two historians spoke at Brown University just a day after Superior Court Judge Michael A. Silverstein declared a mistrial in Rhode Island's landmark lawsuit seeking damages from the paint industry to pay for cleaning up thousands of Rhode Island homes treated with lead paint. The mistrial occurred when the jury reported it could not reach a unanimous verdict. It split, with four votes for the companies and two for the state. Markowitz and Rosner have been following the trial by reading stories on The Providence Journal's Web site and have been deposed as witnesses for the state if the trial moves on to the liability phase. "When we got the news last night about the trial, we went into a profound funk," Rosner said. "This is such a critical issue I hope the state pursues it. This is a groundbreaking principle of holding companies accountable for cleaning up the country they polluted." Leaders of local lead-poisoning advocacy groups and Robert McConnell, one of the lawyers who helped the state try its case, attended the talk. McConnell said the state's legal team would meet soon to decide what strategy to pursue in a new trial. Both sides also plan to file briefs asking Silverstein to grant them a verdict from the bench. Gregg Perry, a spokesman for the paint companies, said yesterday there were no other developments following Tuesday's mistrial. Asked whether the companies had a response to Rosner and Markowitz's accusations, Tim Hardy, a lawyer for NL Industries, a defendant in the Rhode Island trial, said the two historians have taken information out of context in writing their history of lead paint. Historians hired by the industry have looked at the same materials, he said, and concluded that widespread occurrences of childhood lead poisoning weren't generally known until the 1940s. Before that, he said, it was considered largely a problem for painters. "Though it was known that painters doing a lot of sanding were at risk, that's a very different issue from whether children who were in a house were at risk," Hardy said. Hardy said that at some point all of the historians probably will be testifying before a jury. Markowitz said the industry has never accepted responsibility for lead poisonings. First it blamed children who had the bad habit of eating things off the floor. Then the industry blamed what its memos described as "nearly ineducable parents" who don't look after their children properly. Now the industry blames landlords, he said. "They see this as a public-relations problem," Markowitz said. "How do they market lead? They've never treated it as a public-health problem." Rosner said it was known in the 1920s that a child would die if he or she consumed the amount of lead paint covering a 1 1/2-inch-square of wall. Yet if you followed the industry's directions for mixing and applying lead paint, you would cover a large room with 200 pounds of lead, he said. Physicians in Baltimore started writing about lead-poisoned children in 1914, Rosner said. European countries banned it because painters were getting poisoned, but Rosner said the American industry increased its marketing efforts. An article in 1924 described children living in a "lead world." National Lead won marketing awards for its Dutch Boy campaign which associated lead paint with a clean, healthy life for children, Rosner said. Minutes of industry meetings in 1930 talked about how to respond to negative news stories about lead paint. In 1938, Rosner said, other pigments started competing with lead, so the lead industry launched an intensive 14-year marketing campaign. Rosner displayed industry memos that talked about solving the problem by getting rid of slums and educating uninformed parents. "You read enough of these documents and it's very upsetting," Rosner said. ****************************** Bush Administration Cozies up to Lead Industry (again) Recently (October 2000), Secretary of the US Department of Health and Human Services Tommy Thompson appointed new members to the department's childhood lead poisoning advisory board.  Until now, such members have been independent experts recommended by the department's staff.  However, this time Secretary Thompson decided to ignore his staff's advice and selected several people who work directly for the lead industry.  You may remember that President Bush selected as his Secretary of the Interior Gail Norton who was a senior attorney for a law firm that counted NL Industries (formerly of Dutch Boy Paint) as one of its clients. Among his appointees for the lead poisoning  advisory committee are:   Dr. William Banner is a witness for the lead industry in the Rhode Island trial against lead paint manufacturers.  In his deposition, he testified that blood lead levels between 70 and 100 do not pose a risk to children's health.  Dr. Joyce Tsuji is a consultant whose corporate clients include ASARCO, DuPont, and King & Spaulding, a law firm representing several lead companies.  She testified for industry in a class action lawsuit disputing the need for medical monitoring in the vicinity of a lead smelter.  Dr. Kimberly Thompson is affiliated with the Harvard Center for Risk Analysis whose funders include 2 defendants in the Rhode Island case and 22 other companies that have released lead in the environment. Rep. Edward Markey has written a report on this incident and has co-authored a letter to Pres. Bush objecting to this latest case of the foxes guarding  the hens. ******************************************************** Chicago sues lead paint companies (finally) By LIZ AUSTIN Associated Press Writer September 5, 2002, 7:51 PM EDT CHICAGO -- The city of Chicago sued makers of lead paint Thursday, seeking hundreds of millions of dollars to pay for removing the paint from homes and caring for poisoned children. The public nuisance lawsuit was filed in the Circuit Court of Cook County. City attorney Mara Georges called on the companies to contribute their share to the cleanup and treatment efforts. "All we're saying here is that it's time that the taxpayers don't bear the burden of having to abate this nuisance," Georges said. "Instead, the people that are responsible for having created the nuisance should come in and fund the abatement program." The defendants include Sherwin-Williams Co., E. I. du Pont de Nemours & Co. and The Glidden Company. Bonnie Campbell, an attorney representing many of the defendants, said the lawsuit is a waste of the city's time and resources. She said the paint itself is safe and only becomes dangerous when it is not properly maintained. "Litigation won't help a single child," Campbell said. "Litigation will not solve the problems that come from poorly maintained housing." Anne Evans, director of childhood lead poisoning for the city's health department, said Chicago has the largest number of children with lead poisoning of any city in the country. More than 12,000 Chicago children were diagnosed with lead poisoning last year, she said. She said the department spends $4 million a year to diagnose and treat lead poisoning and to test for lead in homes. In addition to asking the defendants to pay for treatment and cleanup, the lawsuit seeks compensatory damages, punitive damages and reimbursement for legal expenses. No dollar figure was given. Lead paint has been banned in Chicago since 1972 and nationwide since 1978, after studies showed that particles from chipped paint were poisoning children. Lead poisoning causes developmental disabilities and behavioral problems. Chicago has high rates of poisoning because up to one million houses in the city were built before lead paint was banned, Evans said. The other named defendants in the lawsuit are N.L. Industries, Inc., American Cyanamid Co., Atlantic Richfield Co., BP Corporation North America Inc., BP America Inc., Millennium Chemicals Inc., Millennium Inorganic Chemicals, The O'Brien Corp. and the Chicago Paint and Coatings Association. Chicago's lawsuit was filed a day after a landmark trial against eight former lead paint manufacturers opened in Rhode Island. The first state to sue the paint companies, Rhode Island also claims the manufacturers caused a public nuisance. Cities such as San Francisco, Milwaukee, New York and Newark, N.J., also have filed lawsuits. The paint companies have won dozens of similar lawsuits filed by individuals, cities and counties. Chicago health department employees on Thursday passed out information on lead poisoning to parents at the Uptown Health Center. Jonnika Lyons recently moved to Chicago with her 2-year-old and 6-month-old daughters. She said she had never known about lead poisoning and did not know if her apartment had been tested for lead. "It's something that I'll go back to my apartment complex and ask them about," Lyons said. ***************************************   RHODE ISLAND TRIAL BEGINS! 09/01/2002 BY PETER LORD Journal Environment Writer Lead paint trial will command national attention Atty. Gen. Sheldon Whitehouse is seeking to hold eight companies accountable for manufacturing or selling lead-based paints decades ago. PROVIDENCE -- So many children have been lead-poisoned here that Providence has come to be known as the lead-paint capital of the United States. On Wednesday, the title will take on a new meaning as the state goes to trial with a lawsuit that will be watched around the nation. Atty. Gen. Sheldon Whitehouse is seeking to hold eight corporations accountable for manufacturing or selling the lead-based paints decades ago that have been poisoning children here and around the country for years. He wants a six-person jury to declare the lead-based paints a public nuisance, and then go on to other proceedings to assign liability and damages. This is the first time a state has sued to have paint declared a public nuisance -- creating a condition that unreasonably interferes with the health, safety and comfort of the community. Dozens of suits have been filed by individuals and communities against the paint companies and all have failed. This is also the first time a state has joined forces with a major class-action litigator -- in this case the law firm of Ness Motley, the South Carolina litigators who have won huge settlements from the asbestos and tobacco industries. THE STAKES in the lead paint trial are enormous. Whitehouse says if he wins the case against the eight companies, he could demand money to end what health experts say is the number-one environmental health problem facing Rhode Island's children. But one financial analyst has said that the consequences for the industry could be "catastrophic." And the state's bankers and Realtors have warned that if all 330,000 houses suspected of being coated with lead paint are declared public nuisances, it could "prove disastrous for owners of property, lenders and mortgage bankers." With so much at stake, preparations for the trial have proceeded on a grand scale. The two sides have assembled enough lawyers to fill a city bus. Many are nationally recognized litigators. To accomodate them, Judge Michael A. Silverstein reserved Courtroom 11, Superior Court's largest hearing room and the scene of many past showcase trials. The paint companies have filed motions all the way to the U.S. Supreme Court to try to sidetrack the case. The two sides have listed more than 60 witnesses, including dozens of doctors and scientists and most of the nation's top researchers of lead poisoning. The paint companies have already subpoenaed more than 2 million pages of documents and deposed about 130 potential witnesses. All that discovery will be boiled down to 8 to 10 weeks of testimony before six jurors and six alternates. When it's over, the jury will be asked to address one not so simple question: Is lead paint a public nuisance? Yes. Or no. LAWYERS WILL portray two dramatically different pictures of typical Rhode Island homes. "We will show that thousands of children have been poisoned and we will show the vector is the paint," Whitehouse said in an interview last week. "We'll use a lot of expert witnesses and they will show it takes very little lead to poison," Whitehouse added. "We're not doing this house by house or child by child. The question is whether society collectively has been harmed." The state's lawyers will argue that hundreds of thousands of houses are covered with lead-based paints that left 2,832 young Rhode Island children with signs of lead poisoning last year. The poisoning rate in Rhode Island is more than twice the national average, prompting the state to require blood tests of every child under the age of 6. The explanation for Rhode Island's high rate is that the state has so many older homes built before lead paint was banned in 1978. Also, many urban homes are poorly maintained. Further, critics complain that city officials have been lax enforcing building codes. At Whitehouse's prompting, the case will be tried in phases to help simplify issues for jurors. The first phase will be to determine whether a public nuisance exists. If the jury decides it does, Whitehouse would like to move on to determining who is liable, what the damages should be, and whether other parties should be sued. The paint companies insist landlords are the real culprits. Silverstein has said he will wait for the finish of this first trial before deciding how to proceed. Each side has selected three lawyers to argue its case. The state's primary lawyer is Leonard DeCof, 78, the dean of the state's personal injury lawyers, recognized nationally for his litigation skills. A graduate of Yale with a law degree from Harvard, DeCof was retained a decade ago by Whitehouse's mentor, Gov. Bruce Sundlun, to recover millions of dollars in damages from accounting firms, insurance companies and credit union officials after the collapse of the state's credit unions. Linn F. Freedman, 41, deputy chief of the attorney general's civil division, has argued most of the pretrial motions for the state. Originally from New Orleans, she earned her law degree from Loyola. New to the table is Jack McConnell, 44, a partner in Ness Motley's Rhode Island office and state Democratic Party treasurer. A graduate of Brown University and Case Western Reserve University School of Law, McConnell was one of the lawyers for Ness Motley who negotiated the $240-billion tobacco settlement. All three will take turns questionning witnesses, Whitehouse said. In an interview last week, Freedman and DeCof declined to go into specifics of their case. But Freedman said no other lawsuit against paint companies has advanced this far. JOHN TARANTINO, a lawyer for the paint companies, points to his own family history to argue against the state's case. Tarantino, 48, a graduate of Dartmouth College and Boston University Law School, is president of the Providence law firm of Adler Pollock & Sheehan. During an interview in his firm's conference room on the 23rd floor of the former Hospital Trust building, his back is turned to the windows overlooking the State House, Providence Place Mall and the Federal Hill neighborhood where he was raised. "My grandparents came here with nothing. Zero," Tarantino said. "They ran competing fruit stands. My parents weren't supposed to even talk to each other." Tarantino said his family moved three times on the same street -- each move brought them to a lower floor of a tenement. After he and his wife married, their first home was in the city's West End, he said. His parents never got to go to college. But he and his four siblings all completed graduate schools. His point is that lead paint covers thousands of houses in Rhode Island and doesn't cause any problems if it's properly maintained. He plans to try the case with two nationally recognized attorneys at his side. Donald E. Scott is a graduate of Harvard College and Yale Law School, and a partner at Bartlit Beck in Denver, Colo. He successfully defended Dutch Boy paint company two years ago from a suit by high-profile litigator Peter Angelos on behalf of a 49-year-old man who said he was poisoned as a toddler. Scott's firm specializes in computer-assisted litigation. Laura E. Ellsworth, a graduate of Princeton and the University of Pittsburgh law school, is a partner in Jones Day, one of the world's largest law firms, which touts itself as representing half the Fortune 500 companies. Working from offices in Pittsburgh, she has written and lectured nationally on the use of expert witnesses and trial tactics. Each of the three represents a specific corporation, but because the upcoming trial is focusing on the general question of public nuisance, the three were chosen to represent all eight companies -- American Cyanimid Co., Atlantic Richfield Co., E.I. duPont deNemours & Co., NL Industries, The O'Brien Corp., Millennium Inorganic Chemicals Inc., ConAgra Grocery Products Co. and The Sherwin Williams Co. All of these companies are big. Some are subsidaries of larger corporations. Some are not. Sherwin Williams, the country's largest paint company, has 2,600 stores, $5 billion in sales last year and 25,789 employees. ConAgra is the second largest food company in the United States, with $27 billion in sales and 89,000 employees. DuPont is the country's second-largest chemical company, with $24.7 billion in sales and 79,000 employees. Tarantino says the paint companies believe the most effective way to deal with lead paint is to educate the public better, to make better efforts to maintain properties, and do more enforcement against landlords who let properties deteriorate to the point that they poison children. He argues that Rhode Island law says lead paint is safe if it's intact. And he points to a recent study by a Brown University undergraduate that found 204 landlords in Providence were responsible for poisoning 2,644 young children over several years. The poisonings were tracked by the state Health Department, which mandates blood tests of young children. "Of 330,000 properties with lead paint, 204 landlords are the bulk of the problem," said Tarantino. "To us, that demonstrates that the vast majority of lead painted properties are safe." TWO YEARS AGO, when Whitehouse first announced his suit and Providence officials sought to file their own, the paint companies responded by hiring national public relations firms and lobbyists that included law school professors, a former congressman and a solicitor general. But as the trial date drew closer, the companies shifted some of the work to local professionals. To represent them here, they hired the Providence public relations firm RDW Group, which assigned Tom Walsh, a former Providence Journal reporter, and Greg Perry, a former spokesman for former Atty. Gen. Jeffrey Pine. Likewise, the the companies assigned a Providence lawyer, Tarantino, to lead the defense. Part of defense strategy apparently is to keep the dispute local. "I think the issue is totally unique to Rhode Island. This is a specific question: whether lead in houses in Rhode Island is a public nuisance. It's a Rhode Island case, with a Rhode Island jury and a Rhode Island verdict," Tarantino says. BUT OTHERS insist it's a Rhode Island case with national implications. Financial analysts have been calling newspeople and attending hearings to keep up with the legal proceedings, which threaten to impact stock values of the defendants. One stock analyst told The Journal that if Rhode Island wins, its suit will serve as a template for similar suits around the country. Advocacy groups are using national list serves to keep their members informed. A local group, Childhood Lead Action Project, is collecting a pair of shoes for every child poisoned in Providence last year and plans to display them during a courthouse rally Sept. 18. Judge Silverstein made it clear last week that he wants the jury to pay attention only to what it hears in the courtroom. And he's going to keep lawyers from taking their cases beyond the limited issues of what constitutes a public nuisance. "The court has, it believes, reduced Phase I to an extremely narrow issue," he said to jurors and lawyers. "The court will not look favorably on anyone who in any manner seeks to take Phase I beyond the parameters I have set." In months of pretrial arguments, Silverstein has appeared to enjoy hearing the legal arguments and solving logistical disputes posed by the legal talent facing him each day. A former managing partner in a big Providence law firm, Silverstein also was a highly touted candidate for chief judge of the state Supreme Court last year. He was considered the least politically connected of the top candidates. And he was highly regarded by lawyers and other judges for his handling of the court's difficult special cause calender where big decisions have to be made quickly for parties seeking to obtain injunctions or end teachers strikes and other crises. During the pretrial pleadings, he's been decisive and demanding when it comes to deadlines and legal disagreements. At the same time, he jokes about his age -- he's 68. He banters on a first-name basis with some of the older lawyers, such as DeCof and Joseph A. Kelly. And he doesn't mind sharing jokes with the entire courtroom.