Battle Lines Drawn Over Lead Paint Poisoning Liability
"Rhode Island's lawsuit against America's paint industry is fundamentally misdirected and will do nothing to reduce children's exposure to lead dust," says J. Andrew Doyle, president of the National Paint & Coatings Association, in a prepared statement. "Instead of wasting precious state resources on unwarranted and unsupportable litigation, Rhode Island should work with us to promote constructive solutions: community-based programs that identify and eliminate lead hazards."
But in Maryland, Baltimore lawmakers are backing legislation that would make it easier for victims of lead poisoning to sue manufacturers of lead-based paint for damages based on the theory of "market-share liability." Market-share liability states that companies can be held liable for any damages caused by use of a product that they manufactured, according to the companies' proportionate share of the market at the time their product was used.
Past suits against the paint manufacturers have failed because of difficulty proving which manufacturer produced the lead pigment that poisoned a particular child.
If the Maryland bill passes, it will allow Baltimore attorney Peter G. Angelos to pursue two lawsuits he has filed against the pigment industry, according to Don Ryan, director of the Alliance to End Childhood Lead Poisoning.
Other market-share liability cases are expected, Ryan says. "There are at least a half-dozen cities and states watching what's happening in Rhode Island," he tells WebMD. One case that he expects will be filed shortly will pit Milwaukee against the paint companies.
So far, advocates of going after the paint companies have suffered one setback. In January, the New York State Appellate Court rejected the validity of the market-share liability theory and reversed a decision by a state judge in Buffalo that allowed plaintiffs in a lead paint poisoning case to proceed under that theory.
It's not just the paint companies being targeted. In another case against the New Orleans Housing Authority, the Louisiana Court of Appeals gave class-action status to up to 2,000 lead-poisoned children to sue as a group. If allowed to proceed, this case could set a precedent for future class-action lead poisoning cases.