State of Rhode Island v. Lead Industries Association et al.:Rhode Island became the first state to sue the lead industry, filing in October 1999. The state alleged that the defendants knew that their products were hazardous and that safe alternatives existed, yet they misrepresented their products as safe. Among the examples of self-interested, irresponsible behavior outlined in the complaint were the lead industry’s concerted efforts to thwart labeling requirements, even after the industry acknowledged the dangers of lead-based paint. The Attorney General is attempting to ensure that any relief awarded in the lawsuit is targeted to preventing lead poisoning by requesting the court to order the defendants to detect and abate lead hazards in the state’s public and private buildings, to fund a public awareness campaign, and to pay for detection and screening of lead poisoned children.

The state achieved two major legal victories in getting the case to trial. On April 2, 2001, Superior Court Justice Michael Silverstein denied defendants’ motion to dismiss, upholding the state’s standing to protect the public health, most notably, the Attorney General’s right to sue on the basis of public nuisance. The court also ruled that the state could proceed to prove that defendants violated Rhode Island’s Unfair Trade Practice and Consumer Protection Act; that they conspired to conceal the hazards of lead-based paint; and that they are liable under tort law theories (for damages to public buildings only), unjust enrichment and indemnity. The court dismissed the state’s claim for special education costs (in deference to the state legislature’s constitutional authority over financing education) and its tort law claims as they relate to private buildings (citing individuals’ rights to sue). To read the court decision on the motion to dismiss, see www.courts.state.ri.us/superior/pdf/99-5226.PDF.

On February 5, 2002, Judge Silverstein granted the state’s request 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. The trial on the public nuisance issue began on September 4, 2002. Following seven weeks of testimony, jurors were unable to reach a unanimous verdict and Judge Silverstein declared a mistrial on October 29, 2002. In December 2002, the parties requested the judge to rule on the public nuisance issue as a matter of law. He declined to rule in favor of either party in March 2003.

In July 2005, DuPont Corporation agreed to pay nearly $12 million to settle its case in the state’s landmark lawsuit. This is a significant acknowledgment by a lead paint manufacturer of its responsibility to address the problem it partly caused.

Under the agreement, DuPont will pay for education, training, community, outreach, enforcement, and lead-hazard research. $6.6 million of the agreement is to be used to abate lead hazards in 600 houses. This is a small step forward in addressing lead hazards in Rhode Island. According to data from the 2000 Census, combined with HUD’s National Survey of Lead and Allergens, Rhode Island has 350,000 housing units built prior to 1978, of which more than 150,000 have lead hazards.

In October 2005, Judge Silverstein dismissed American Cyanamid from the case. The retrial against the remaining defendants began October 31, 2005.

On February 22, 2006, a six-member jury found that Sherwin-Williams, NL Industries, and Millenium Holdings (owners of Glidden) were responsible for creating a public nuisance when they intentionally manufactured, marketed, and sold a product they knew to pose public health hazards. The jury did not find Atlantic Richfield Company, the remaining defendant, liable for any public nuisance. The state's victory represents the first time that a state or local government has prevailed against the lead paint industry following the conclusion of a trial.

On Feburary 28, 2006, Judge Silverstein decided to bar punitive damages against the three liable defendants. Next, the judge and attorneys for both sides will begin a series of hearings to determine the scope of other financial and programmatic responsiblities that the three companies will owe to the citizens of Rhode Island. The industry appealed the jury's verdict and other issues to the Rhode Island Supreme Court.

On July 1, 2008, in a disappointing decision, the Rhode Island supreme court overturned the landmark verdict finding paint companies liable for creating a public nuisance. The court said the state failed to prove that the presence of lead paint was a public nuisance in Rhode Island and that the lawsuit should have been dismissed. To read the court decision, see http://www.courts.ri.gov/supreme/pdf-files/04-63_7-2-08.pdf.

County of Santa Clara v. Atlantic Richfield Co. et al.: In March 2000, Santa Clara County initiated a class action lawsuit on behalf of all public entities in California that have incurred costs associated with lead-based paint exposure. Santa Cruz, Solano, Alameda and Kern counties, as well as the City and County of San Francisco, the City of Oakland, and a number of municipal agencies in those cities have since joined the suit.

This case is unique in several respects: It is the first class action lawsuit filed against the lead pigment manufacturers by a governmental entity. The complaint accuses the lead industry of continuing to mislead the public regarding the hazards of lead-based paint, a recent example being the Lead Industries Association’s (LIA) 1999 video on childhood lead poisoning. Exhibits to the complaint include lead industry ads, among them a 1941 LIA ad that proclaims, “the more white lead, the better the paint.”

The County alleges that the industry knew lead was harmful, and was aware of safe alternatives, but continued to manufacture and market lead-based pigments through the 1970s. The complaint details the lead industry’s marketing efforts targeted at children, as well as its concerted campaign to thwart governmental regulation. In addition to compensatory and punitive damages, the complaint seeks disgorgement of defendants’ profits and an injunction prohibiting defendants’ continuing wrongful conduct.

In December 2000, a California Superior Court judge rejected the lead industry's argument that the plaintiffs’ fraud claim was time-barred, and also ruled that the government services doctrine (which the defense argued prohibits governmental entities from recovering the costs of public services) did not apply in this case. In September 2001, the court threw out plaintiffs’ public nuisance claim, but ruled that plaintiffs can seek to recover damages to public property on grounds of strict products liability and negligence, and can pursue their claims of fraud and concealment, and violations of California’s Business & Professions Code.

On July 8, 2003, in ruling on defendants’ motion for summary judgment, the court dismissed the case, holding that it was barred by a three-year statute of limitations. The judge rejected the plaintiffs’ contention that the companies’ fraudulent concealment of the hazards of lead-based paint should toll the statute of limitations.

A California appeals court reinstated the county's case on March 3, 2006. The appeals court denied a rehearing of the case on March 24, 2006.

The California Supreme Court denied review of the appeals court's decision on June 21, 2006. The Supreme Court's decision, issued without a stated reason, sends the case back to the trial court level. No information about a trial date is available.

The County of San Mateo joined as an additional party to the suit in November 2006, and the cities of Los Angeles and San Diego joined in January 2007.

Harris County, Texas v. Lead Industries Association et al.: Harris County, Texas sued the lead industry on May 2, 2001 for damages to county buildings, alleging strict liability, negligence, fraudulent misrepresentation, public nuisance, restitution and conspiracy in connection with defendants’ promotion of lead-based paint and pigments. This case is currently on hold.

City of Chicago v. American Cyanamid Co., et al.: On September 5, 2002, the City of Chicago launched the largest case filed to date against lead pigment manufacturers for damages stemming from lead-based paint. Chicago has more lead-poisoned children than any city in the country and almost any state, with well over 26,000 children poisoned during 2000 and 2001 alone.

The suit was unique in that it relied solely upon a public nuisance cause of action. Chicago maintained that the presence of lead-based paint in areas accessible to children unreasonably jeopardized their health and safety. The city sought to require the defendants to establish and fund an abatement program in order to eliminate the public nuisance.

The City of Chicago also claimed that for decades, the defendants knowingly marketed a dangerous product, and therefore they should be liable for punitive damages. In addition, the city sought to recover the costs it has borne as a result of the presence of lead-based paint in areas accessible to children.

In October of 2003, a judge dismissed the city’s lawsuit, ruling that the city failed to connect any of the defendants to a nuisance in any particular building. The city filed its appeal of the dismissal in February 2004.

On January 14, 2005, the Appellate Court of Illinois, First District, unanimously upheld the circuit court’s dismissal of the City of Chicago’s lawsuit. After a rehearing, the appellate court reached the same decision in January 2006. The City of Chicago reports that the two appellate court losses are the end of the road for this case.

City of Milwaukee v. NL Industries Inc. and Mautz Paint: On April 9, 2001, the City of Milwaukee filed suit against National Lead Industries (NL Industries) and Mautz Paint, a local paint producer and seller, seeking compensatory and punitive damages, as well as abatement of lead hazards in Milwaukee homes and restitution for the city’s abatement-related expenditures. The suit is unique in its focusing on only two defendants, as well as in its targeting of remedies: The city seeks $85 million to abate lead hazards in about 41,000 houses in specific areas within Milwaukee neighborhoods, where approximately 26 percent of the children have elevated blood lead levels.

The complaint alleges, among other things, that at a 1937 conference, industry doctors described how to “make the blood clear of evidence, so as to defeat litigation,” and even suggested removing a man’s teeth so there would be no “lead line for ‘the shyster lawyer’ to see.” Milwaukee has estimated that its past and future damages relating to lead-based paint total nearly $85 million.

The City of Milwaukee seeks relief from both defendants on grounds of continuing public nuisance, restitution, and conspiracy. In addition, the city has claimed that Mautz Paint is liable for negligent and strict liability failure to warn. On October 15, 2001, the judge dismissed a false advertising claim against Mautz Paint, but ruled that the city can seek to prove a conspiracy by defendants resulting in a public nuisance. In November 2001, Sherwin-Williams acquired Mautz Paint.

Defendants filed a motion for summary judgment in March 2003 contesting the public nuisance claim. On July 29, 2003, Judge Dugan sided with the defendants and dismissed the city’s case on grounds that the city failed to prove that the defendants’ products were applied to the homes or caused children to become poisoned in the neighborhoods targetedby the suit. The judge was criticized for the decision because he required the plaintiffs to prove that the defendants’ products caused damage at specific properties, rather than considering whether the defendants contributed to the community-wide harm caused by lead-based paint, which is the applicable standard in public nuisance actions. The City appealed.

The suit was reinstated by the Wisconsin Court of Appeals on November 9, 2004. The Court of Appeals did not rule on the merits, but said there were disputed questions of fact that make summary judgment inappropriate at this time. The lead industry appealed the Court of Appeals ruling to the Wisconsin Supreme Court.

On July 29, 2005, in light of the Wisconsin Supreme Court's decision in Thomas v. Mallett (holding that an individual can sue lead pigment manufacturers for harms suffered from lead poisoning), Mautz and NL Industries dropped their appeal. The City of Milwaukee's case will now proceed to trial, beginning January 8, 2007.

St. Louis v. Lead Industries Association et al.: The City of St. Louis sued the lead pigment manufacturers in January 2000 to recover its costs to treat lead poisoned children and abate lead hazards in public and private homes and buildings. The suit claims that the defendants manufactured and marketed lead pigments despite their knowledge of the hazards, and accuses the defendants of failing to test their products adequately and warn of their dangers. The complaint includes claims for public nuisance, product liability, negligence, fraudulent misrepresentation, conspiracy, unjust enrichment, and indemnity, and seeks compensatory and punitive damages as well as injunctive relief. The defendants were unsuccessful in their attempts to have the case heard in federal court.

The defendants filed a motion to dismiss, which was heard by the Circuit Court for the City of St. Louis in November 2001. In an 88-page order issued a year later, Judge Margaret Neills upheld all but the city’s claim for indemnity. She ruled that the alleged widespread presence of lead-based paint in the city’s housing stock presents a “very serious and pervasive threat to the public health as well as an environmental hazard and therefore qualifies as a public nuisance.” She also ruled that the city unquestionably has standing to assert all the claims in the complaint, and that the city may seek to satisfy the product identification requirement through discovery.

Since Judge Neills's 2002 ruling, the City has narrowed its case to a public nuisance theory. In March 2004, the Circuit Court rejected the defendant's motions for summary judgment and dismissal but ruled that the City may only recover damages in an amount to cover the its costs for abating lead hazards in privately owned housing during the period of 1990-2000.

On January 18, 2006, Judge Neills dismissed the remaining case against the defendants. The City of St. Louis appealed, and in early January 2007, a Missouri appeals court sent the case to the Missouri Supreme Court for review, saying, "the existing law affecting this case should be reexamined," and adding that it is an "important question in which the general public has interest."

On June 12, 2007, the Missouri Supreme Court ruled that the City of St. Louis could not proceed with its case. The court said that it was unwilling to impose "market share" or public nuisance liability on the defendants because the city could not prove that the specific companies it sued had in fact manufactured the lead-based paint that coats the walls of homes and government buildings across Missouri. The court's ruling marks the end of this case.

In Re: Lead Paint Litigation: In December 2001, more than twenty public entities in New Jersey, including Newark and Union County, filed suits against the lead industry on grounds of fraud, public nuisance, conspiracy, unjust enrichment, and indemnity. The plaintiffs requested that defendants be required to fund programs for detection and abatement of lead-based paint in public and private homes and buildings, medical screening and monitoring, and public education on the hazards of lead-based paint. In February 2002, Supervising Mass Tort Judge Marina Corodemus ordered that the cases be consolidated in the Mass Tort Section of the Middlesex County Courthouse. On November 4, 2002, Judge Corodemus dismissed the cases, on grounds that the public nuisance approach violated New Jersey’s laws and constitution, and other grounds. While ruling that the municipalities lack authority to bring the suit, she noted that the Attorney General has the right to abate a public nuisance and to bring suit in cases where the public interest is concerned.

On August 17, 2005, the New Jersey Court of Appeals reinstated the lawsuit. The appeals court ruled that a case tried on the basis of public nuisance is allowable, but the local governments’ claims of fraud and civil conspiracy were insupportable and will not be part of any future trial. The appeals court, in a 51-page opinion, rejected the trial court's assertions that the suit violated state law and the state constitution. The appeals court held that New Jersey municipalities have inherent police powers that allow them to bring lawsuits to address public nuisances, such as those caused by deteriorated lead-based paint. Whether the lead pigment manufacturers being sued in this case contributed to the public nuisance in question is a decision best left to a jury, according to the appeals court’s ruling. The industry defendents have appealed the case to the New Jersey Supreme Court.

On June 15, 2007, the New Jersey Supreme Court held that the case was not a public nuisance case, but instead a product-liability case that required the counties and cities to show direct injury and causation. Thus, it held, the cities and counties cannot proceed with its public nuisance case, marking the end of this case.

City of New York, et al. v. Lead Industries Association et al.: In 1989, the New York City Housing Authority (NYCHA) and others filed an action against lead pigment manufacturers and the LIA alleging market share liability, conspiracy, alternative liability, and enterprise liability for their collective efforts to conceal the hazards of lead-based paint. Initially, the complaint sought more than $2.7 million in damages for costs incurred by NYCHA on lead abatement in hundreds of housing developments.

For years, the defendants successfully delayed any discovery by plaintiffs, while at the same time conducting massive discovery of their own. Plaintiffs’ significant discovery burdens, as well as other substantive obstacles to some of plaintiffs’ claims, have reduced the current case to claims involving only two housing developments. The judge in the case found in September 1999 that it would be premature to apply market share liability to the case. Defendants’ motions to dismiss NYCHA’s restitution, indemnity, and fraud claims have been denied. Discovery is ongoing.

Houston Independent School District v. Lead Industries Association et al.: Two school districts in Texas, Houston and Spring Branch, were the first in the country to bring suits against the lead pigment industry for damages caused by the use of lead-based paint in schools and other district facilities. The school districts allegedly used lead-based paint on walls, lockers, railings, and windows. The suits, filed in June 2000, allege strict liability for defective products; failure to warn; fraudulent misrepresentation; and conspiracy to conceal the dangers of lead-based paint and thwart regulation. The plaintiffs are seeking payment for abatement and/or remediation of school buildings and other facilities. In addition, they requested punitive damages on account of defendants’ alleged malice and deliberate disregard of the hazards associated with their products.

In an apparent attempt to discourage other school districts from filing suit, lawyers for the lead industry contacted the Silsbee Independent School District in October 2000, advising the district that the lawsuits are “without merit and not in the best interest of Texas school districts.” Liberty, El Paso, and Brownsville Independent School Districts subsequently filed suits similar to those brought by the school districts in Houston and Spring Branch.

In June 2002, the trial court judge in the Spring Branch case ruled in favor of NL Industries on its motion for summary judgment. NL argued that plaintiffs cannot prove that the company’s lead-based paint is present in the district’s facilities. The Texas Court of Appeals upheld the summary judgment ruling in June 2004. The cases filed by Houston, Liberty, and Brownsville Independent School Districts and Harris County, Texas were suspended pending a resolution of NL’s liability in the Spring Branch case, and further action in light of the Court of Appeals decision is uncertain. The El Paso case was withdrawn.

These cases differed from others brought by governmental entities, in that the Texan plaintiffs are seeking to pinpoint which companies manufactured the lead-based paint in specific public facilities. Other governments have alleged that the widespread harm caused by lead-based paint in public and private buildings constitutes a public nuisance for which the lead pigment manufacturers are responsible.