Battle Lines Drawn Over Lead Paint Poisoning Liability

From the WebMD Archives

March 9, 2000 (Atlanta) -- Taking their cue from victories over the tobacco industry, government bodies have a new target in their sights: paint companies -- specifically those that at one time sold lead-based paint and coatings.

Regulations banning the use of lead in gasoline, new paint, food cans, and other products have substantially reduced the U.S. population's lead exposure over the past two decades, said Sen. Robert Torricelli, D-N.J., in a formal statement introducing the Lead Poisoning Expense Recovery Act in 1999. But as many as 1 million children are still exposed to lead-based products daily, he said.

Very high levels can have devastating health consequences, including brain and nervous system damage, seizures, coma, and death. Even low levels of lead in the blood can have detrimental effects on a child's ability to learn. This can be hazardous for children living in older communities where, until the 1970s, lead-based paint was used extensively.

The first salvo fired at the paint companies came from Rhode Island. Last November, the state's attorney general filed a lawsuit in state court accusing eight companies, including DuPont and Atlantic Richfield Company (ARCO), of promoting the use of lead paint while covering up the dangers it posed to children.

"There are many legal and technical issues involved that we believe show the Rhode Island lawsuit has no merit," DuPont spokesman Cliff Webb, director of media relations, tells WebMD. "That's why we, along with the other defendants, have filed a motion to dismiss."

ARCO spokeswoman Marylou Ferry tells WebMD in a faxed statement that ARCO has been sued unsuccessfully in a variety of cases because, in the late 1970s, ARCO bought a company that had once owned a company that made lead pigment more than 50 years ago.

"Trial lawyers are attempting to hold ARCO liable for a product that it never made, sold, or profited from -- a product that was made over 50 years ago, before the dangers of interior lead-based paint were known," she says.

The lawsuit also names as a defendant the Lead Industries Association, an industry trade group. It seeks to make the defendants pay for both treating children poisoned by lead paint and removing lead paint from buildings.

"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.

In St. Louis, the Missouri Attorney General Jay Nixon recently filed suit in St. Louis City Circuit Court against Healthcare USA of Missouri, LLC, and Prudential Health Care Plan Inc. for failure to screen St. Louis children enrolled in Medicaid. The suit alleges breach of contract and Medicaid fraud, stating both companies accepted full payment for a range of services, including lead testing, yet failed to test 82%, or 17,000, Medicaid-enrolled children under age 2.

However, a panel of physicians and scientists affiliated with the American Council on Science and Health (ACSH) concluded that for the majority of American children, "lead poisoning is a condition of the past."

"That's chilling," says Ryan, adding that lead poisoning is an environmental problem compounded by social problems, especially poverty.

For at least the last 50 years, progress in lead poisoning prevention has been a struggle among public health, civil rights, and other officials fighting for economic justice against the lead, gasoline, and real estate industries, he says. "It's not a thing of the past for the ... children suffering from lead poisoning."

Vital Information:

  • Lead poisoning has been eliminated from gasoline, new paint, food cans, and other products, but nearly 1 million children are exposed to lead-based products every day.
  • Many government bodies are exploring lawsuits against different players in the lead paint industry, accusing them of covering up known dangers about the substance.
  • Exposure to high levels of lead can cause brain and nervous system damage, seizures, coma, and death, and low-level exposure can adversely affect a child's ability to learn.
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