Odd Couple

In recent years, nearly a dozen local governments--cities, counties, and even school districts--have brought lawsuits against paint manufacturers, charging that lead-based paint has created costly public-health problems, especially affecting children. Now Rhode Island has become the first state to sue paint manufacturers. One in five children entering kindergarten in Rhode Island has elevated levels of lead in his or her blood. Ingestion of paint chips and dust causes most cases of lead poisoning.

Among those named in the action are DuPont, Sherwin-Williams, and the Lead Industries Association. The industry clearly wants to head off a legal precedent that leads to expensive outcomes along the lines of the 1998 tobacco settlement with 46 states. But in April, a Rhode Island state judge denied a motion by paint manufacturers to dismiss the lawsuit. And other cases continue to pop up: Milwaukee is the latest city to file suit. Two in five children in inner-city Milwaukee have lead poisoning, which can cause brain damage and developmental difficulties.

But can companies be held responsible? The legal road ahead is filled with obstacles. Lead paint has been banned since 1978, and lead content in paint was reduced in the 1950s. Though much lead-based paint remains in old housing, individual lawsuits by tenants and property owners against paint makers have been unsuccessful; it is nearly impossible to document which company produced the paint that is alleged to have caused a problem. And skeptics have argued that lead in soil--a result of automobile pollution from the days when gasoline had lead in it--is a culprit, too, especially in urban areas near highways.

Rhode Island's approach is to use public-nuisance laws to hold the manufacturers as a group responsible for the costs of lead abatement. "As long as individual lead-poisoned kids or landlords were suing, the lead industry was victorious," says Jack McConnell, who is representing the office of Rhode Island Attorney General Sheldon Whitehouse in the case. (McConnell also worked on the states' case against tobacco companies.) "Government entities coming to the plate changes the paradigm, so that we turn this from individuals into a public-health lawsuit."

The paint manufacturers say the lawsuits are misguided. "Lead poisoning is a societal problem that everyone needs to participate in solving," says Alan Wheat, a spokesman for several of the companies. "I don't think it's appropriate at this stage, easily 50 years after lead paint was being used in large measure, to single out the lead companies and say these are the people who should solely pay."

But health advocates say that lead paint has already created huge costs for children, parents, landlords, and taxpayers--everyone but the companies, whom they say knew about the dangers of lead paint by the 1920s but continued to market their products. "Lawsuits are not the preferred way to solve problems in society," says Eileen Quinn, deputy director of the Alliance to End Childhood Lead Poisoning. "But the industry's track record suggests that legal action is the only way to get them to the table."

The suits have been met with mixed reactions. A Washington Post editorial noted that "it is unlikely that many shareholders in today's paint companies held stock at the time of any improper conduct. Whom exactly would liability punish? Moreover, it's hard to imagine any deterrent value for current corporations in the possibility of liability 50 years from now." But Quinn argues that the corporations' current assets and shareholder value are based on their history, and that the companies should help clean up the mess they created.

The case will turn, in part, on whether 50-year-old paint is seen to be the legal equivalent of a smoking gun--or a smoldering cigarette.