Trial Lawyers, Inc. is always searching for its next big payday, and America's paint manufacturers have recently loomed as the litigation industry's latest target. The trial bar's legal assault has combined two of the oldest and most successful strategies in the lawyers' playbook: going after long-ago manufacturers of lawful products (as in asbestos litigation); and co-opting allied state attorneys general to back the private lawyers' claims (as in the lawsuits against the tobacco industry).
After years of unsuccessful efforts, the litigation industry's hopes of extracting money from paint makers began to look promising when the trial bar won a major victory last year. In February 2006, a Rhode Island superior court found three paint manufacturers—herwin Williams, Millennium Holdings, and NL Industries—liable for the costs of removing lead paint from 240,000 public and private buildings, under a novel "public nuisance" theory. The estimated price tag on the court-ordered cleanup is as much as $3 billion.
But recent court decisions in other states—including New Jersey, Ohio, and Missouri—have evinced a more traditional understanding of the issues raised in Rhode Island, and each of these state courts has rejected the litigation industry's lead paint claims.
Early Lead Paint Suits Smothered
Paint manufacturers have been fighting lead paint litigation for two decades even though they voluntarily ceased making lead paint for interior use in 1955, after it was found to cause neurological problems in children who ingested its dust or flakes. The federal government banned its use in 1978.
Although lead exposure can be harmful, the level of lead in children's blood has been dropping nationwide since the 1970s. (In Rhode Island, new cases of lead poisoning dropped by 75% over the ten years prior to the 2006 verdict.) The decrease is largely due to the elimination of several major sources of lead poisoning—most important, the federal prohibition of the sale of leaded gasoline (see box, page 3).
Regulations passed by state and local governments have also been effective. For example, 36 years ago Massachusetts began to require that landlords abate lead paint in homes with children. A recent study found that the incidence of lead poisoning in children in Worcester, Massachusetts, is now one-third the rate in nearby Providence, Rhode Island. Regulatory, rather than legal, remedies have thus proven effective, though in the beginning, lead poisoning lawsuits aimed at neglectful landlords were helpful in compelling them to properly maintain their properties.
But in the mid-1980s, spurred on by business scourge Ralph Nader—whom we've dubbed Trial Lawyers, Inc.'s president of public relations—the plaintiffs' bar began to bring product liability suits against paint manufacturers, testing a smorgasbord of legal theories, including conspiracy, fraud, negligence, collective liability, and risk contribution. Skeptical courts dismissed virtually every lawsuit or else plaintiffs withdrew them, having failed to prove wrongdoing on the part of the defendants or to link decades-old paint to a specific maker.