Who is suing the lead industry?

The State of Rhode Island; counties in California, New Jersey, and Texas; and municipalities including San Francisco, Oakland, Milwaukee, and St. Louis; school districts in California, Mississippi, and Texas; and the New York City Housing Authority have filed or joined suits against the lead pigment manufacturers. Lead-poisoned children have also sued the lead industry in a number of other locales. For the status of the government lawsuits against the industry, click here.

In July 2005, DuPont Corporation agreed to pay nearly $12 million to settle its case in Rhode Island’s landmark lawsuit against the manufacturers of lead-based paints. This is a significant acknowledgment by a lead paint manufacturer of its responsibility to address the problem it partly caused.

In February 2006, the State of Rhode Island prevailed in its suit against three former lead pigment manufacturers, an important and precedent-setting decision that could have ripple effects to other jurisdictions where suits are already under way.

What basis do governments have for suing?

To date, the lead industry never has been held accountable for producing and profiting from a product it knew was harmful. Governmental bodies (and therefore taxpayers), on the other hand, have incurred significant costs stemming from the presence of lead-based paint in public and private buildings, including housing. Because states have a quasi-sovereign interest in protecting the health and well-being of their residents, they can sue to protect that interest. Governments also own buildings that have been painted with lead-based paint. They have and will continue to incur abatement costs to control and prevent lead hazards in those buildings.

What types of relief are the plaintiffs seeking?

Most of the lawsuits seek to recover public expenditures to detect and abate lead hazards, perform medical screening and treatment, and educate the public about the dangers of lead-based paint. In addition, the plaintiffs have requested punitive damages, on grounds that the defendants maliciously and intentionally concealed the hazards of lead-based paint.

The State of Rhode Island has requested that the defendants be ordered to detect and abate lead in all public and private buildings in the state that are accessible to children, and to fund screening and prevention programs, including a “corrective” public education campaign on the dangers of lead. Each of the governmental plaintiffs has requested that financial responsibility for past and future lead poisoning prevention programs be shifted to the defendants. By specifically requesting that defendants fund prevention programs, the plaintiffs will help to ensure that proceeds of the lawsuits are targeted for prevention, and do not end up in general state coffers, as was the case with the funds from the tobacco settlements. The suits do not specify a dollar amount of damages sought.

Some of the plaintiffs have requested additional unique types of relief. For example, the California counties have requested that the defendants be required to disgorge the ill-gotten gains they made as a result of their unfair and fraudulent business practices, and that they be prohibited from continuing to downplay the hazards of lead-based paint. For example, through the Lead Industries Association (LIA), the industry produced a self-serving video in 1999 featuring Sesame Street’s “Susan.”

Who benefits if these suits succeed?

If these lawsuits succeed in forcing the lead industry to contribute significant resources to lead poisoning prevention, children and families will be the primary beneficiaries, as lead hazards will be permanently eliminated from housing before children are poisoned. Taxpayers also will benefit, since they no longer will be required to pay for detecting and abating lead hazards, lead poisoning screening and treatment, special education programs for lead-poisoned children, etc. To the extent that this type of lawsuit encourages more responsible corporate behavior in the future, the public at large will benefit as well.

Are state and local governments exposing themselves to any risks by suing?

Not really. It is possible but improbable that the defendants could try to argue that the claims brought by plaintiffs are totally lacking in merit and frivolous, which could subject the plaintiffs to court sanctions if proven. However, no such claims by defendants have been raised, and most legal experts agree that these claims would be very unlikely to succeed if brought.

Haven’t there already been successful suits awarding damages to lead-poisoned children? Why are these suits necessary?

There have been successful suits brought on behalf of lead-poisoned children, primarily against rental property owners (but not the lead industry). Those suits typically seek to compensate children who already have been poisoned on a case-by-case basis. These suits occasionally afford relief to small numbers of lead-poisoned children (if successful, and if the defendant has the resources to pay the damages). They do not create an opportunity for prevention beyond the case at hand, and do not direct resources to the core of the problem—lead-based paint hazards that are poisoning children in their homes. If the lead industry is not held financially responsible for the damage caused by lead-based paint, there is little hope that taxpayer funds will be sufficient for broad-scale, primary prevention in at-risk communities.

Are taxpayers paying big legal fees to wage these lawsuits?

No, taxpayers are not paying large fees to support these lawsuits. The lawyers working with the governmental plaintiffs have taken these cases on a contingency fee basis, meaning that they will be paid only if they succeed either at trial or in settlement. The potential attorney fees for these cases are sizeable; however, the attorneys assume all the risk of a loss in a contingency fee case, including their expenses for research and investigation.