Toxic lawyers threaten health;
Paint lawsuits may help keep the lead in

By Kenneth Smith
Copyright 1999 Washington Times
November 18, 1999

When a Baltimore couple discovered their two sons had elevated blood levels of lead, they knew just who to blame for the boys' health problems: the lead paint industry. Not only did the industry provide the children with a deadly bounty in paint chips to ingest, the family charged in a lawsuit, it conspired to squelch information about the dangers of lead paint and to promote its continued use.

But when the courts stripped the case down to its bare essentials, there was almost nothing left of it. It turned out that not only was there little or no evidence of flaking paint in the family's house, the boys' mother acknowledged she had never actually seen them eat paint chips. The plaintiffs had to admit they had seen warnings about lead content on the paint cans themselves. And the judge hearing the case ruled there was "no evidence whatsoever" that the Lead Industries Association (LIA) "concealed any studies, altered any documents or misrepresented any finding." End of conspiracy. End of case.

But the facts in such cases may not be enough to protect the industry from a looming legal assault from trial lawyers armed with billions of dollars from tobacco settlements and an apparently insatiable appetite for more. All that money means the lawyers are in less danger of going bankrupt in search of their next litigation fix.

Ron Motley, a South Carolina trial lawyer who turned tobacco into his own cash crop, already has filed suit against the lead paint industry on behalf of Rhode Island and promises more to come. "If I don't bring the entire lead industry to its knees within three years," he told a reporter from the Dallas Morning News last month, "I will give them my boat." He can always afford to buy another 120-foot yacht.

The health risks of lead are hardly unknown. In Roman times, Pliny the Elder cited lead poisoning among "the diseases of slaves." There are references to it in medical literature in this country that date to the 1840s. In Baltimore a century later, city officials faced with an increase in cases of childhood lead poisoning attributed the problem to peeling paint in houses that had been poorly maintained.

Not everyone got the word. A 1955 Agriculture Department handbook cited "the outstanding merits of pure white lead paint" because of its resistance to adverse weather conditions and tolerance for irregular maintenance. It wasn't until 1970 that the feds actually got around to banning its use. Interestingly no one seems much interested in trying to bring a case against the government for its negligence regarding lead paint.

There are numerous ironies here, not the least of which is that it was the industry which funded research into the dangers of lead paint and helped publicize the findings. Following up on the concerns of Baltimore officials, paint manufacturers sponsored research into the problem at Johns Hopkins and Harvard, then traveled the country alerting health officials to the risks that had been discovered. They also voluntarily recommended the termination of marketing of interior lead paint in the mid-1950s.

In a 1966 article on lead toxicity in a peer-reviewed journal, a researcher praised an LIA official named Manfred Bowditch both for his "support of distinguished research" and his "enthusiasm for dissemination of knowledge." This seems a novel way to run a conspiracy to hide the dangers of lead paint.

Another irony of Mr. Motley's suits is that there is very good news regarding efforts to prevent lead poisoning. Cases in which children actually show symptoms of lead poisoning have virtually disappeared and blood-lead levels have come down sharply. Writing in the Journal of the American Medical Association in 1994, researchers found that in groups surveyed over a 15-year period ending in 1991, mean blood-lead levels in persons ages 1 to 74 had fallen 78 percent. Mean blood-lead levels in children ages 1 to 5 had fallen 77 percent.

There are isolated cases in low-income urban areas that health officials must still resolve, but most cases of lead poisoning disappeared with the phaseout of lead from gasoline and other consumer products. The remaining scientific controversy is about the effects of low-level exposure to lead and how to abate the problem.

Does one, for example, insist on mandatory screenings for all children? If so, that may distract attention from the relatively small subset of inner-city children who may face real risks. Should one attempt to remove existing lead-based paint that appears to be intact and well-maintained? A study of New York children found that home renovation and remodeling involving lead paint turned out to be an important source of lead exposure to children. The best thing to do with lead may be to leave it alone. Otherwise encourage children not to eat dirt or paint chips that may have trace amounts of lead, have them wash their hands before eating. It's fairly commonsensical stuff that doesn't require a major lawsuit.

Notwithstanding the industry's record on lead paint or the fact that industry management today had nothing to do with decades-old practices that the federal government itself encouraged at the time, paint manufacturers may face a number of lawsuits on the issue before it's over.

The problem for the plaintiffs' bar was that it was hard to blame a particular company for exposure to lead paint was that lawyers had no way of knowing just which company made the paint that allegedly sickened their clients or when someone put it on the walls. In the almost 50 years since companies stopped making lead-based paints, a lot of companies have come and gone. Trial lawyers couldn't be sure they were suing a company that was even in business when the paint went on.

So what they are trying to argue now is that courts should apportion damages based on manufacturers' shares of the lead-paint market. It doesn't answer the question of which company is "guilty." It asks the court simply to assume all the companies are guilty.

Faced with the prospect of defending itself in multiple courts at the same time, the industry could end up going to the bargaining table to avoid the sheer cost of the litigation. Mr. Motley may get another boat out of it, but if he keeps people from focusing on what genuine lead risks to children remain, he could cost families something far more precious.

Kenneth Smith is deputy editor of The Washington Times editorial page.

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