State’s first lead paint verdict splits on issues

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The split decision in the city of Milwaukee’s civil suit against NL Industries may have only served as a primer for the next coat of questions in cases calling for the remediation of lead paint from local residences.

A jury voted 10-2 that the existence of lead paint in a portion of the city’s housing, primarily in lower income areas, created a public nuisance. But by the same 10-2 vote, the jury found that NL Industries was not negligent.

“It was an interesting split verdict that a hometown jury said they knew NL was selling poison paint, but also came to the conclusion that they didn’t think is was necessary to hold the company liable for something that ended 30 years ago,” said University of Wisconsin Law School Professor Peter Carstensen.

Milwaukee had sought $52.6 million to compensate for the cost of remediating lead paint from roughly 11,000 houses. Lead was banned from paint in 1978, but it was a known toxin as far back as World War I, according to Carstensen.

Several suits against producers of lead paint have evolved during the last decade, but only Rhode Island and now Milwaukee have had cases go to a jury trial. In February 2006, a jury ruled in favor of Rhode Island, which was the first state to successfully apply the theory that lead paint producing companies created a public nuisance by failing to prevent exposure.

The case in Milwaukee advanced after an appellate court reversed a district court’s summary judgment granted to NL Industries. The prosecution in Milwaukee had hoped that there was enough evidence to prove that NL Industries was culpable, but took some solace in the public nuisance verdict.

“I think signs point in both directions here,” said attorney Richard Lewis, who served as the primary attorney for the city of Milwaukee. “Rhode Island found liability against the defendant, but that wasn’t the case here. It’s disappointing, but public nuisance laws are not uniform in all states.”

Prior to going to trial, supreme courts in Missouri and New Jersey ruled that state governments could not sue the lead paint producers on the grounds that their products created a public nuisance.

Appeals by the defense are underway in the Rhode Island case, and the same will soon be true from the plaintiffs in the NL case, according to Lewis.

“We were encouraged by the public nuisance finding and still believe it’s a solid case,” said Lewis, who added that the city was in the process of pursing trial motions and planned to form appeals within the allotted 20-day window.

Despite Lewis’ optimism, Milwaukee still has an uphill battle to prove accountability, Carstensen said. He contended that the initial verdict may allow NL Industries to alter its bargaining strategy.

“I think this strengthens NL’s hand if there is a willingness to settle for relatively small amounts, but still give the plaintiff something,” said Carstensen who added that the jury’s decision had no “precedential” value for future cases.

At least 30 individual cases against the lead paint industry are pending in Milwaukee County Circuit Court. Compen-sation is being sought for physical and mental disabilities caused by prolonged exposure to lead paint.

But rather than solely coming after the industries, attorney Donald Scott, who served as trial counsel for NL Industries, stated that the city and individuals should be looking toward landlords for negligence claims.

“The vast majority of property owners in the city of Milwaukee are responsible and maintain their properties, but a small number of landlords do not maintain their properties in a safe manner,” said Scott in a statement. “Litigation is a distraction from the proven solution of enforcing the law against landlords who neglect their property.”

Currently the city’s Department of Health works cooperatively with landlords to ensure buildings are up to code by providing grant funds.

Milwaukee County Deputy District Attorney Rudolph M. Konrad described it as a give and take between the city and landlords to remedy the lead paint problems. He noted that the city will provide funds to repair old windows, which shed lead paint dust during opening and closing if landlords agree to make other areas of the building safe.

“I don’t think the city wants to go into the buildings and bill the landlords because that kind of Draconian approach is not well received,” said Konrad. “The city is striving to build a cooperative relationship, rather than an adversarial one.”

But in cases when landlords do not comply with city orders to remediate their property, it is the tenants who potentially pay the price.

“Landlords have a sweet deal in Wiscon-sin because as long as they give a document to the tenant saying the building was constructed before 1978 and may contain lead paint, they are excused from liability,” said Carstensen. “In my view, that is outrageous. I think there needs to be some level of responsibility taken.”