Lead could be target of next major suit

Flush from success with tobacco, lawyers eye pigment makers

April 07, 1999|By Eric Siegel, Scott Shane and Sean Somerville | Eric Siegel, Scott Shane and Sean Somerville,SUN STAFF

With the ink barely dry on last year's $246 billion tobacco settlement, some lawyers involved in that litigation are setting their sights on a new target: the manufacturers of lead pigment used in paint that has blighted the lives of poor, urban children for decades.

The South Carolina law firm that played a crucial role in forging the states' tobacco settlement has urged the attorneys general to launch a similar legal campaign against the lead industry and is assisting in a private lawsuit against the pigment makers.

Peter G. Angelos has had eight lawyers working for the past two months preparing suits against the lead industry that he says will be filed this year in Baltimore and a number of eastern cities.

Both Angelos and the South Carolina firm -- Ness, Motley -- earned hundreds of millions of dollars suing the asbestos industry and then used that capital to finance their legal assault on cigarette makers.

The same fundamental claim advanced in asbestos, tobacco and, more recently, firearms lawsuits -- that manufacturers knew their product was dangerous but sold it anyway -- is being wielded against the lead industry.

Potential plaintiffs include tens of thousands of people whose ingestion of paint chips and lead dust as children has left them mentally retarded or with behavior problems.

"There is little doubt that the lead industry knew lead paint was poisoning kids for years," said Arthur H. Bryant, executive director of Trial Lawyers for Public Justice in Washington. "There's certainly a basis for massive litigation."

Industry attorneys also anticipate a wave of lawsuits, with or without the involvement of attorneys general.

"I think plaintiffs' attorneys are going to try to make lead paint the next tobacco situation," said Thomas Graves, general counsel for the National Paint & Coatings Association.

"Whether public policy-makers are willing to follow them off the cliff has become a question."

Unfavorable history

Any legal challenge will have to overcome a 12-year history of unfavorable court rulings, including one in a case filed by Angelos in Baltimore five years ago.

Advocates for victims of lead poisoning have been heartened by recent procedural rulings in cases pending in state courts in New York and Louisiana.

They have also been buoyed by the success of the tobacco litigation, which showed that even the richest and most unyielding of industries is not immune.

Pierre Erville, an attorney in Takoma Park in Montgomery County and a lead poisoning expert, says the time is ripe for lawsuits against the lead pigment manufacturers.

"These cases are ready to go," said Erville, who worked until last year for the Washington-based Alliance to End Childhood Lead Poisoning. "There's a lot of research. There's a lot of public awareness. Politically, this is the right time for these cases."

If the optimism of Erville and others turns out to be well-founded, lead poisoning cases could move from the realm of "slip and fall" lawyers suing landlords to that of mass tort attorneys going after deep-pocket corporations such as Sherwin-Williams, Atlantic Richfield and Glidden.

Contrasting themselves with the tobacco industry, paint companies said they have not marketed household lead paint for decades and have paid for lead paint removal programs.

"A dozen lawsuits against us have been thrown out" of court, said Jeffrey Miller, executive director of the Lead Industries Association. "And I'm confident that the remaining ones will be thrown out as well."

He said the industry would vigorously defend itself.

The damage lead can do to the human nervous system has been known since ancient times. A Greek physician wrote in 200 B.C. that lead "makes the mind give way." Benjamin Franklin wrote of the metal's "mischievous effects." By 1897, physicians in Australia had published detailed accounts of childhood lead poisoning.

Since then, hundreds of studies of lead paint poisoning were published in medical journals, detailing damage to the brain and other organs that in turn caused reduced intelligence and behavior problems. Bans on lead paint were enacted in many countries.

In 1978, the United States became one of the last developed countries to ban lead in paint used in homes, a delay that plaintiffs' attorneys and advocates say was clearly the result of the manufacturers' aggressive lobbying and deceptive public relations.

"Even Iraq had banned it -- in 1960," said Erville.

Though the number of lead-poisoned children has declined in the two decades since the ban, about two-thirds of the occupied housing in the United States still contains lead paint, and lead poisoning continues to be a serious problem, especially in older urban areas, experts say.

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