03-2786 City of Milwaukee v. NL Industries, Inc. and another (61764)

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“We likewise conclude that the extent and effect of promotion of lead paint sales by both defendants and their knowledge of the potential hazards of the paint is an issue of material fact for the jury. …

“At trial, the jury will have the opportunity to determine whether a public nuisance exists, whether defendants’ conduct in promoting the use of lead paint and their sales of lead pigment and paint in the Milwaukee area were substantial factors causing the nuisance, and whether the public nuisance, if one is found, was a cause of the damage sustained by the City. Findings as to the existence of a public nuisance, its cause, and the resulting damages will be material and helpful in evaluating the public policy considerations raised in this case.”

Further, the existence of a letter written by one company vice-president, “as well as documentation of NL Industries’ involvement in lead paint promotion and opposition to regulatory legislation, lead us to conclude there are genuine issues of material fact concerning each defendant’s involvement in an alleged conspiracy to promote and accomplish the sale of lead-based paint, knowing of its potentially hazardous properties.”

Reversed and remanded for trial on the claims of public nuisance, conspiracy and restitution.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Dugan, J., Kessler, J.

Attorneys:

For Appellant: Richard S. Lewis, Washington, D.C.; James J. Pizzirusso, Washington, D.C.; Ted M. Warshafsky, Milwaukee; Frank T. Crivello II, Milwaukee

For Respondent: Jennifer Heisinger, Denver, CO; Elizabeth L. Thompson, Denver, CO; Timothy Hardy, Washington DC; James T. Murray Jr., Milwaukee; Michael J. Wirth, Milwaukee