- The Washington Times - Tuesday, February 28, 2006

From combined dispatches

PROVIDENCE, R.I. — A judge ruled yesterday that Rhode Island cannot seek punitive damages against three lead-paint manufacturers found liable for creating a public nuisance in the state.

The companies — Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC — still must pay to clean up the mess caused by lead paint, which could amount to billions of dollars.

Superior Court Judge Michael Silverstein will decide later exactly what the companies must do to fix the problems caused by lead paint, which was banned in the United States in 1978 because it can cause brain damage and other health problems in children.

A jury on Feb. 22 held the three companies responsible for lead paint present in thousands of older homes in Rhode Island.

The case is the first in which a state successfully held former paint makers liable for creating a health threat from products containing lead. Other state attorneys general have said they would consider filing similar suits if Rhode Island won.

The judge sided with the companies on the issue of punitive damages after they argued there was no evidence that they engaged in reckless or willful conduct amounting to a crime. They pointed out that lead paint was legal at the time they were manufacturing the product.

Punitive damages are meant to punish and deter misconduct.

Jack McConnell, a lawyer representing the state, said he was disappointed, but he welcomed the overall verdict requiring the companies to shoulder the cleanup costs.

“You don’t often see that in the law, where people are ordered to go back and fix a problem — and that’s what this is all about,” Mr. McConnell said.

The judge said he will meet with lawyers on the cleanup, including a decision on making the state lead paint free or lead paint safe.

The standard abatement technique for 20 years has been sealing the lead by painting over it, a far less costly technique than removal, said Barbara Allen, an analyst at Avondale Partners in Nashville, Tenn.

Painting would cost about $1,000 a home, or $330 million for 330,000 homes, the highest state estimate of those affected, she said.

That would be $110 million per defendant, or 50 cents a share for Sherwin-Williams.

“That’s not a difficult amount for them to handle,” she said.

Removing lead paint from 240,000 affected homes might cost as much as $4.5 billion, J.P. Morgan Securities analyst Jeffrey Zekauskas estimated in a report on Thursday.

The judge could require abatement at far fewer homes, because only 2,000 have children with documented lead poisoning, she said.

Children can get brain damage and other illnesses from breathing lead dust or eating the paint that peels off walls, medical studies have shown. Rhode Island estimates that 1,167 children in the state have high levels of lead in their blood. Lead pigment was used to make paint durable and easy to clean.

More than 20 countries had banned it by 1922, Rhode Island officials say. The companies argued that lead pigment poses a health risk only when homeowners or landlords let the paint deteriorate.

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