Blaming the lead paint industry for the health problems suffered by Rhode Island children because of lead poisoning, Attorney General Sheldon Whitehouse last October filed a lawsuit against the manufacturers. Three months later, the defendants are saying that even if all that Whitehouse alleges is true, the state would still lose its case. They are seeking a dismissal because in court because they say the state is the wrong party to be bringing the suit.
When Whitehouse filed the suit on Oct. 13 in Superior Court, he stated that one in five kindergarteners in Rhode Island – and nearly one in three children in Providence, Pawtucket Woonsocket, Newport, and Central Falls combined – has elevated lead levels in his or her blood. He further alleged the lead paint industry knew of the harmful effects that lead can have as far back as 1904, but continued to profit from its use.
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Lead poisoning, a particular problem in Rhode Island because of its large stock of older homes, has been known to cause neurological disorders in children, including learning disabilities and behavior problems.
The defendants in the suit are companies that formerly made the lead pigment used for lead-based paint, or the companies that have succeeded those companies. They are: The Sherwin-Williams Co., SCM Chemicals, NL Industries Inc. – formerly National Lead Co. – The Glidden Co., American Cyanamid Co., E.I. duPont De Nemours and Co., Atlantic Richfield Co., The O’Brien Corp., and Lead Industries Association Inc., of Sparta, N.J.
The state seeks, among other things, damages to compensate it for lead-poisoning related health, education, and abatement costs.
The federal government banned the use of lead-based paint for interior residential use in 1978.
But the attorneys who represent those companies will now ask the court to dismiss the case, said Timothy S. Hardy, a lawyer for the Washington, D.C. firm, Kirkland & Ellis.
”We are not disagreeing with any of the factual allegations, but instead arguing that even if those allegations were true, that complaint does not submit a recognizable claim,” Hardy said.
Hardy made clear that the industry does not agree with Whitehouse’s claims. For the purposes of the dismissal motion, however, the defendant must agree to the allegations, he said.
The defendant’s claim that Rhode Island’s complaint is invalid stems from two legal principles, known as the Remoteness Doctrine and the Services Doctrine, Hardy said. In essence, both say that the people who should be suing for the damages caused by lead poisoning are the people who were actually harmed. “The state is the wrong plaintiff to be complaining about these things,” said Hardy, who represents NL Industries, a Houston-based producer of titanium dioxide.
The attorney general’s office will now have the opportunity to respond to the motion to dismiss. The defendant will then have a chance to respond to Whitehouse’s response, Hardy said. A judge will then decide on whether to dismiss the case or not.
If the judge rules against the motion and the case goes forward, the lead paint industry will contest the state’s allegations, Hardy said.
In late September, Hardy and other lawyers who represent companies that formerly made lead pigment for lead paint traveled to Providence in an attempt to convince Whitehouse not to sue the industry. They argued that the industry bears no responsibility for the current problems because the industry recommended the removal of interior lead paint from the market 45 to 50 years ago, even though the government did not ban its use for interior use until 1978.
But they failed. And Rhode Island became the first state to sue the industry. In filing a suit, it joined cities such as Philadelphia, New Orleans, New York, and Worcester and Springfield, Mass.
Lead paint is considered to be a danger when it is peeling, not when it is intact. That is why lawyers such as Charles H. Moellenberg Jr., a Pittsburgh attorney who represents Sherwin Williams, say that a better way to solve the problem of lead poisoning is to rehabilitate housing that has fallen into disrepair. “This is a story of neglect,” he said in an earlier interview with Providence Business News. “Intact, lead paint is typically not a hazard.”
