Lead paint lingers as legal liability - several paint companies involved in class action suits - Statistical Data Included

Home Channel News, Sept 3, 2001 by Terry C. Evans

Lawsuits against paint makers continue to mount as industry debates politics of responding

NATIONAL REPORT -- A product, once thought to be safe, turns out to be a killer. A deluge of lawsuits places the blame on anyone and everyone linked to the product. Dozens of businesses plunge into bankruptcy. It's a scenario that continues to wreak havoc on companies associated with cancer-causing asbestos. Now, it appears it's the paint industry's turn, as lawsuits are stacking up against manufacturers over the one-time practice of adding lead to their products.

Now more than ever before, lawsuits are mounting against the industry, including some that have the backing of heavy hitters with significant political muscle. Take the half-million member National Association for the Advancement of Colored People. In July, the civil rights group announced plans to file a class-action lawsuit against the paint industry, alleging that exposure to lead paint has caused health problems that "constitute a civil rights issue."

Although the NAACP has yet to take action, in the last two years alone, the city of Milwaukee, two Texas school districts, four counties and two cities in California as well as the entire state of Rhode Island have filed suit against the industry.

Copycat tactics

Rhode Island became the first state to file a lead-paint lawsuit in 1999 targeting eight paint manufacturers -- Glidden, Sherwin-Williams and Dupont among them -- as well as the Lead Industries Association, a nonprofit trade group that represents lead pigment manufacturers. With one of the highest lead-poisoning rates in the nation, Rhode Island alleges that paint manufacturers conspired as far back as the 1920s to market a product they knew was harmful. Modeled after lawsuits against big tobacco, the Rhode Island suit seeks to recover costs linked to the health risks from exposure to lead paint. In April, paint manufacturers tried to get the case thrown out, but the Rhode Island Superior Court allowed it to move forward. No trial date has been set, but for those watching the lead issue, all eyes are now on Rhode Island.

"There are a number of other states, more than a dozen, which are watching very closely what is going on here," said Jim Martin, spokesman for Rhode Island's Department of Attorney General. "They're in contact regularly. There has been ongoing dialogue in keeping them as up to date as possible on the progress of this case."

The paint industry is also following the case, in part because it's being litigated with the help of attorneys who fought -- and won a windfall -- in the legal battle against big tobacco.

Lawyers for paint makers, however, say that issues involved in suing cigarette makers and asbestos producers have little relevance to lead.

"A group of plaintiff lawyers who made a lot of money in tobacco are hoping to get the same result, but it's like apples and oranges," claimed John Haggerty, Glidden's general counsel. "Asbestos and tobacco are completely different than lead. Unlike those industries, we did research and testing to find out the hazards. The lead industry took action and stopped manufacturing the product 50 years ago."

Paint manufacturers did pull lead products off store shelves before they were officially banned in 1978. Still, it wasn't long before the first wave of lawsuits started trickling in. Initially, the paint industry won every case or had lawsuits dismissed. Now, however, the lawsuits are back, and with a new twist that draws on the successes of the fight against the tobacco industry -- class-action suits seeking to link a particular product with wide-scale health problems.

Glidden, for instance, is currently a defendant in 17 lawsuits, the bulk of which were filed in the last few years and three of which are class-action suits. As in the past, paint manufacturers think they have a strong case.

"The vast majority [of experts] have looked at this and said they don't have a case," said Tom Graves, general counsel for the National Paint and Coatings Association, a nonprofit trade group representing some 400 paint and coatings manufacturers, raw materials suppliers and distributors. "The point is -- they don't have a case."

Political muscle

But the sheer volume of lawsuits, along with the threat of the NAACP getting involved, is enough to make even the most outwardly confident defendants cringe. The civil-rights group has called on President George W. Bush to take a stand, and it has been urging people who feel they've been victims of lead paint poisoning to come forward, according to Jean Ross, a NAACP spokeswoman. So far, she said, the group is receiving "several calls" a day from people around the country.

That alone has gotten the paint industry's attention.

"We're not naive," Graves said. "Everybody has to be concerned about [possible NAACP action]."

Already Graves is pressing for a meeting with NAACP president Kweisi Mfume in the hopes of heading off a potential suit.

"Mfume is a very independent guy. I think he's the type of guy who will not be a dupe for billionaire trial attorneys. He will take it upon himself to seek solutions," Graves said. "We really want to meet with him and talk about solutions. We sent a letter to him expressing all of that. We also sent a similar letter to [President] George W. Bush, hoping he makes this a priority issue."