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  Lead Paint: The Next Big Legal Target

By Saundra Torry
Washington Post Staff Writer
Thursday, June 10, 1999; Page A1

Armed with new legal theories, trial lawyers and politicians locally and across the nation are gearing up to mount a major assault on the former makers of lead paint, which was banned in residences in 1978 but still poisons children in older buildings.

The potential battle borrows much of its inspiration from the recent legal assault on big tobacco a confrontation that wrung a $240 billion settlement from cigarette makers after states took on the industry in a series of lawsuits. Just as the tobacco suits sought to recover Medicaid funds used to treat sick smokers, lead paint lawsuits would likely seek recovery of government funds spent on medical care or to remove lead from housing.

Many of the same lawyers who made millions in the tobacco litigation are jumping into the fray, wooing potential clients. Some are enlisting the help of sympathetic attorneys general who may now feel emboldened to target an industry that has never paid a cent in damages.

In the District, the administration of Mayor Anthony A. Williams (D) plans to introduce a bill to revamp the city's lead control laws and ease the way for potential lawsuits against former lead pigment manufacturers. In Rhode Island, the attorney general is preparing a lawsuit to recoup medical and other government costs of lead poisoning a suit that may borrow tactics used against the tobacco industry.

Baltimore Orioles owner Peter Angelos, the lawyer who led Maryland's legal campaign against tobacco, has begun drafting a potential suit against lead paint manufacturers. Another heavy-hitting lawyer, Jack McConnell, whose South Carolina firm helped craft the huge multi-state tobacco settlement, is pressing a suit in Cleveland.

The activity marks the revival of a battle that had faded from public consciousness during the past 20 years, as the federal government banned the use of lead in paint and the industry beat back major lawsuits in Boston, Philadelphia and Baltimore.

But recently, the potent alliance between well-heeled trial lawyers and state attorneys general against the tobacco industry has "broadened everyone's thinking about creative legal remedies," said Don Ryan, of the Washington-based Alliance to End Childhood Lead Poisoning. "The industries responsible for putting lead in the paint and keeping it there for decades after the dangers were known ought to . . . be held accountable."

Paint and pigment makers deny responsibility. They say lead paint manufacturers voluntarily stopped using lead in interior paints in the 1950s and supported the federal ban approved in 1978. They also say most problems related to exposure now are the result of poor maintenance by housing owners. Besides, they say, it is impossible to affix blame because lead is in other commonplace products, such as pipes.

Jeff Miller, executive director of the New Jersey-based Lead Industries Association, derided the trial lawyers' potential assault, saying, "They are just out to make money."

"I don't think any of us expect to lose [future lawsuits], and all the resolved court cases support that belief," Miller said.

A spokesman for one large paint maker, Sherwin-Williams, said the "best venue" for responding to allegations in lawsuits "is in court."

Still, the broader business community is alarmed at the prospect of wealthy trial lawyers joining cities or states to target entire industries, as they did in cigarette and gun lawsuits.

When governments begin using lawsuits to raise revenue, they have "crossed a very dangerous threshold," said Larry Krause, who heads the U.S. Chamber of Commerce's Institute of Legal Reform.

Paint companies once used lead in their products because it helped hide whatever color was being painted over. The product, though, turned out to be a health threat, particularly for children, whose developing nervous systems are especially vulnerable to poisoning even in small amounts.

"The myth is that children need to eat paint chips to be poisoned," said Ryan, of the Alliance to End Childhood Lead Poisoning. "But the much more dominant scenario," he said, is when lead dust from deteriorating paint "gets on kids' toys and . . . hands and is ingested through normal behavior."

According to recent government surveys, more than 890,000 preschoolers about 4.4 percent nationwide suffer from high lead levels, which can cause behavior problems, lowered IQs and severe learning difficulties.

States such as Maryland, with older cities and high concentrations of pre-1950s housing, have higher percentages of affected children, according to Barbara Conrad, who heads the Maryland Department of the Environment's lead poisoning prevention effort. About 67,000, or 15 percent, of Maryland preschoolers were tested in 1997. Among those children, more than 11 percent were found to have elevated lead levels, and nearly 2 percent had levels serious enough to trigger screening, home investigations and other state services, Conrad said.

Trial lawyers representing individual children have sued landlords over lead poisoning for years, some winning large judgments. But the victories were almost like a "lottery," Ryan said, with "precious few children being [properly] compensated" for their medical troubles.

Unlike landlords, the huge companies that made lead pigment never have been found liable or have faced a full-blown trial. The handful of lawsuits filed against the companies generally were thrown out because "it was impossible to prove whose paint was on which wall," so the courts could not fix liability on any particular company, according to Arthur Bryant, of Washington-based Trial Lawyers for Public Justice, which was involved in some of the early lawsuits.

Federal courts in Philadelphia and Boston rejected attempts by plaintiffs to use a "market share" theory, in which blame and damage would be apportioned among all the lead pigment makers based on their share of the market when the damage occurred, Bryant said.

However, in January, a county judge in New York said the companies could be held responsible as a group, with their portion of damages "fairly" computed by market share.

Trial lawyers hailed the ruling, and some believe they may find further success by employing the same strategy they used against tobacco and gun makers. In such lawsuits, states or cities would likely argue that they were injured because the industry continued to market a deadly product, misled the public and government about its dangers and thwarted government efforts to regulate its use, said McConnell, a partner in the Rhode Island office of Ness, Motley, Loadholt, Richardson & Poole, which is based in Charleston, S.C.

McConnell's firm has talked with attorneys general in Rhode Island, Washington and Missouri about potential lawsuits, according to officials in those states, though only Rhode Island Attorney General Sheldon Whitehouse (D) is currently preparing a suit.

In the District, public health officials are drafting a comprehensive lead measure to replace a law that is more than 30 years old, according to Theodore J. Gordon, the city's deputy director for environmental health. While one provision may ease the way for lawsuits against the industry, the focus is on containing toxic lead paint in housing. Gordon said he hopes the bill will serve as "a model for the rest of the country."

In Maryland, Angelos said his firm plans to file a lawsuit "imminently," though he declined to provide details. Meanwhile, an aborted move to introduce a measure that would have made it easier to sue lead paint makers under a market share theory has spurred a federal investigation into the actions of Del. Tony E. Fulton (D-Baltimore) and Annapolis's top lobbyist, Gerard E. Evans, and his partner, John Stierhoff.

The probe is trying to determine whether the lawmaker's discussions about lead paint were actually at the behest of the two lobbyists, who stood to earn higher fees fighting the bill, according to those who have spoken with investigators.

In a letter last October, Fulton sought the support of Baltimore Mayor Kurt L. Schmoke (D), saying he planned to introduce a measure so "victims of contamination can seek their day in court." The bill, he said, would establish a "fair system for apportioning damages" among makers of lead and other hazardous products.

The FBI has subpoenaed that letter, as the agency seeks to find out if the lobbyists had any hand in its creation. The two lobbyists represented several companies that would have opposed the bill.

Fulton, Evans and Stierhoff have declined to comment. The legislation never was introduced.

© Copyright 1999 The Washington Post Company

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