The Wall Street Journal
Thursday, October 31, 2002

The Hand of Providence

Most Americans would be mortified to have their homes declared a public nuisance. But that's just one difference between most Americans and trial lawyers.

The good news this week is that a Providence, Rhode Island, jury rejected an effort by the firm of Ron Motley to endorse the novel legal idea that the mere presence of lead paint in a house constitutes a public nuisance. After four days of deliberation, the jury split 4-2 for the paint companies, resulting in a mistrial. The bad news is that the lawyers and their attorney general allies are sure to be back.

You remember Mr. Motley. His law firm walked away with what will eventually be upward of $3 billion from the tobacco wars. In Providence he tried to reprise that act over paint. "If I don't bring the entire lead paint industry to its knees within three years," Mr. Motley vowed to the Dallas Morning News back in 1999, "I will give them my boat." That "boat" is of course a yacht.

Ostensibly this suit was about -- of course -- the children. "We are doing it for the health of Rhode Island's children," proclaimed state Attorney General Sheldon Whitehouse when he announced his landmark suit against eight paint manufacturers and an industry trade association in 1999. No doubt it was also "the children" who motivated him to have this trial go ahead this year, when he happened to be seeking the Democratic gubernatorial nomination.

Mr. Whitehouse lost that race in September, but the Frankenstein he and Mr. Motley created in their litigation lab took on a life of its own. Under traditional consumer liability laws, plaintiffs would have to prove that a specific manufacturer's paint in some specific house caused some damage. So Mr. Whitehouse and his hired guns went the other route: If the mere presence of lead paint is enough to get a building declared a public nuisance, the problem -- and the payoff -- grows exponentially.

But what made this suit really ugly is that by any measure the paint industry has been a model corporate citizen. Not only was lead paint perfectly legal for decades, early on it was even touted as a health benefit, primarily because it was both durable and washable. When the industry found that lead in residential paint posed dangers to children, manufacturers in 1955 voluntarily agreed to a standard aimed at removing lead from interior paint. Uncle Sam didn't get around to its first regulation on lead paint until 1970, and not until 1978 was it banned.

Now, there's no denying that children can and do get lead poisoning from lead paint. But after that there's more politics than science. The risk comes mostly from paint dust that gets on a child's hands and ultimately into his mouth. Which helps explain why children with unacceptably high levels of lead in their blood disproportionately come from poor families far more likely to be living in homes where the old paint is deteriorating.

How to protect against this? A Brown University chemistry professor testified that, in ordinary circumstances, even a single overcoat of non-lead paint would be enough to prevent harm. "Left to its own devices," he told the court, "we're talking centuries." Worth noting here is that even in Rhode Island, overall lead levels in children continue to decline.

The point is that protecting children against lead paint is far easier than protecting companies against frivolous lawsuits. It hardly seems to matter that not one of the nearly four dozen cases already brought against the paint industry has succeeded. As the lawyers understand all too well, all they need for the big score is one little jury. The urgent question is when the political system is going to respond and stop this now-legal looting.

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