Judge’s ruling doesn’t end<br> debate over lead verdict

A year after a state jury found that lead paint was a public nuisance in Rhode Island and the Sherwin-Williams Co. and two other paint manufacturers should be responsible for abating it, a judge last week denied the companies’ motion for a new trial.
In a 197-page decision issued Monday, Superior Court Judge Michael A. Silverstein also began to lay the groundwork for the lead abatement process, saying he intends to assign a special master, as requested by Attorney General Patrick C. Lynch, to oversee the matter.
Silverstein gave the state and the paint companies 30 days to submit the name and résumé of a proposed special master of their choice. And each has 60 days to submit a proposed order addressing the special master’s powers and duties.
Yet disagreement remains as to whether the paint companies will be paying for lead abatement anytime soon.
In an interview, Lynch said he is optimistic that, with Silverstein’s decision, “we are very well down the path to resolving this.” But he wouldn’t say when he thinks any actual remediation might start taking place. “I’m hoping it’s a short time frame,” he said.
But Bonnie Campbell, spokeswoman for the defendants, Sherwin-Williams, Millennium Holdings LLC and NL Industries Inc., said it won’t be a short time frame.
“It really is too early to discuss an abatement plan,” she said. “We believe that when we appeal, which we will do as soon as possible, that the R.I. Supreme Court will look at these issues anew, with a new set of eyes. … [and] the jury’s verdict will not be upheld.”
But even if there’s an appeal, Lynch said, there is “plenty of work” to do while the appeal is pending, such as a study and assessment of the lead paint remediation left to be done in Rhode Island.
Lynch said he expects that, once appointed, the special master will be charged with developing a multifaceted abatement plan that will take some time to complete. And the court ordered that the plan not replicate any existing lead abatement programs in the state.
Lynch said he doesn’t expect the court will allow the defendants to block the appointment of the special master. Silverstein’s decision, he noted, repeatedly upholds the validity of the jury’s verdict, and it goes one by one through the defendants’ arguments and refutes them.
Yet Campbell called the ruling a “procedural step in a case that is seven years old and far from over.”
Chris Gorham, lead program coordinator for Rhode Island Housing, agreed. “It’s a great victory, but we don’t see the money becoming available that soon,” Gorham said. “We all expect the three paint companies are going to appeal. … When it is $3 billion a company would be obligated to spend to deal with a problem they created, I would expect they would contest that as high as they could.”
Campbell said the defendants also plan to bring up in an appeal the fact that “the state identified its goal of eliminating lead poisoning, and by its own definition the state of Rhode Island has eliminated child lead poisoning.”
She said that in applying for federal funds, the state had set a target, saying that if it got lead poisoning in children below that threshold, it would consider the problem to have been eliminated.
But Lynch said that while the share of children newly diagnosed with lead poisoning in 2005 was only 2 percent, down from 12.3 percent in 1996, the defense lawyers have already brought up that argument in past hearings, and the judge and jury rejected it.
Andrea Bagnall Degos, spokeswoman for the R.I. Department of Health, said it is true that the state has met certain benchmarks for eliminating lead poisoning in children, but there are still 240,000 homes with lead paint that could poison Rhode Island’s children.
“I think [the decision] provides a big opportunity to get rid of the biggest culprit in this issue, which is the lead paint in housing,” she said.
There is still concern, however, as to whether the state will urge the special master to make the homes “lead-free” as opposed to “lead-safe.” And that is an important distinction, Campbell said, because of the great expense and impracticality of making a home “lead-free,” meaning all lead paint would have to be removed.
Most of the lead abatement that has been done in Rhode Island in recent years was to make properties lead-safe. Campbell said the paint companies plan to keep pushing for the lead-safe standard if they do have to proceed with abatement.
But Lynch said that might not be necessary, because the state might not seek to have all lead paint removed.
“I’m looking to have the nuisance caused by lead paint abated,” he said. “To have the nuisance rendered harmless … in a permanent manner so no Rhode Island children will suffer the consequences.”