N.J. Localities Try to Make a Nuisance of Lead Paint
New Jersey case comes in the wake of a landmark verdict in Rhode Island

Michael Booth
New Jersey Law Journal
December 12, 2006

Three decades after lead-based paint was banned as a public health hazard, New Jersey cities and towns want it declared a public nuisance.

The state Supreme Court is poised to decide the issue and the case has the rapt attention of the paint industry, which fears adoption of the doctrine here would ease the way for recoveries across the nation.

The plaintiffs' theory, in In Re Lead Paint Litigation, A-73-05, is that peeling, poisonous lead paint is an inherently hazardous condition; hence, there is a duty to abate it and paint manufacturers should be compelled to contribute.

The plaintiffs are 26 municipalities and counties -- led by the state's largest cities, Newark, Camden, Jersey City and Passaic -- that want to hold paint manufacturers and sellers liable for millions of dollars spent on remediation of lead-tainted buildings, along with costs of medical monitoring of people exposed.

The defendants are companies that produced the lead additive used in paint pigment before it was banned in 1978: E.I. du Pont de Nemours & Co., Sherwin Williams, NL Industries, Millennium Holdings, Atlantic Richfield, American Cyanamid, Cytec Industries and ConAgra Grocery Products Co.

At the court last month, a lawyer for the manufacturers argued that holding the industry liable on a nuisance theory would be "a radical change of substantive law" because lead paint was not considered dangerous when it was on the market.

"This was a lawful product some 50, 100 years ago," said Ezra Rosenberg of Dechert in Princeton. "They allege that the defendants knew lead paint was dangerous. No court has ever allowed such an allegation to proceed."

Rosenberg called the Appellate Division's ruling "not only unsupportable and unwise, but unnecessary," in view of statutes aimed at ending use of lead paint, directing powers to local boards of health and tightening environmental restrictions.

The case in fact turns on whether the statutes pre-empt local government action. A trial judge found they do and dismissed the suit but the Appellate Division reinstated it, finding the Legislature did not intend the statutes to be the sole means of abating lead-paint hazards.

Chief Justice James Zazzali asked, "Isn't there a public health crisis?"

Rosenberg replied, "The Legislature has recognized that lead paint ? is a public health problem. There is no reason to dispute that. But the plaintiffs are suing for injuries sustained by others in a non-emergent situation for the first time."

Zazzali asked about the public policy implications, citing Public Advocate Ronald Chen's amicus curiae brief, which stated that tens of thousands of children have been affected by lead paint. "The Legislature would not have intended to wipe out common-law remedies," Zazzali said.

"That's an argument to be made to the Legislature," Rosenberg responded, adding that the implications of allowing a public nuisance theory of recovery are alarming. Chemical manufacturers might be held liable at some time in the future for products now considered safe, he said.

Plaintiffs lawyer Fidelma Fitzpatrick, of Motley Rice in Providence, R.I., argued that the manufacturers cannot claim they bear no responsibility for causing a major threat to public health.

"The defendants knew their product caused permanent and irreparable brain damage. They chose to engage in a pattern of conduct in which a known toxin was widely distributed," she said.

Justice Roberto Rivera-Soto asked Fitzpatrick how liability can be visited upon manufacturers when the allegedly injured parties -- people exposed to lead paint -- have not instituted claims.

"This is not a products liability claim," Fitzpatrick replied. "Rather, this is an abatement of a public nuisance, an exercise of police power to protect public health and welfare."

When Rivera-Soto asked how a manufacturer could be held liable on a nuisance theory for a product that was lawful when sold, Fitzpatrick replied, "Lawfulness is not an element of a public nuisance claim."

In fact, since no showing of defendant culpability is required, the public nuisance doctrine has had some success out of state where conventional product liability approaches had failed.

Last February, a Rhode Island jury found five manufacturers liable on a nuisance theory in a suit filed by that state's attorney general. All other counts, namely unfair trade practices, negligence, strict liability and civil conspiracy, had been dismissed in the seven-year long litigation. As in the New Jersey case, the Rhode Island suit sought compensation for abatement costs and medical treatment and monitoring.

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Lead paint case going to state Supreme Court
Thursday, November 30, 2006
By KATE COSCARELLI
NEWHOUSE NEWS SERVICE

A high-stakes case pitting lead paint manufacturers against a group of local government entities - including Bayonne, Jersey City, Union City and West New York - has reached the state Supreme Court.

In the case, which has attracted national attention, 22 New Jersey municipalities and four counties are trying to sue the lead paint manufacturers and distributors. At stake is who should pay to remove the stuff from homes and apartments and treat lead-poisoned residents.

Not in dispute is the fact that lead poisoning is recognized as a serious health problem, particularly in children. Lead paint has been banned in the state for 35 years, but before that it was used in innumerable homes and apartments.

The issue is whether the towns and counties have "inherent police powers" - in addition to the other powers the Legislature has granted to clean up lead paint - to sue to stop a public nuisance, such as a health threat.

Many children are in danger in the place where they are supposed to be safest - at home - said Fidelma Fitzpatrick, who represents the towns.

"We should not be using children as lead detectors," she said. "This action is about going into these homes and finding where the lead paint is."

The paint industry knew the product was toxic and should face legal sanctions to help with abatement, said Michael Gordon, who also represents the towns. The money would be used to pay for rehabilitating buildings, medical monitoring and education.

Attorneys for the paint manufacturers - Atlantic Richfield Co., NL Industries, Millenium Inorganic Chemicals, Sherwin-Williams, American Cynamid, Cytec Industries, ConAgra and DuPont - countered that lead pigment and paint was legal when it was applied and towns are trying to retroactively punish the companies. Such action could open the legal floodgates to other issues, said Ezra Rosenberg, who represents a chemical company.