Baltimore lawmakers eye new bid to ease lead-paint industry litigation

Baltimore lawmakers want make suing the makers of hazardous lead paint easier.

Moved to address the continuing poisoning of Maryland children by the paint in their homes, Baltimore legislators plan to seek legislation aimed at holding manufacturers of the lead pigment once used in house paint liable for the lasting health damage caused by the products they sold decades ago.

Del. Jill P. Carter said she'll put in a bill that would make it easier to sue those companies for the lead-based paint they sold until 1978, when it was banned nationwide as unsafe in homes. Del. Curt S. Anderson, chairman of the city delegation, said he'll seek to get all of Baltimore's lawmakers to sign on as co-sponsors.

"I want people to be held accountable," said Carter, a Democrat whose district includes neighborhoods where many children have been poisoned over the years. Ingesting even minute amounts of lead dust or flakes from paint can cause lasting learning and behavioral problems, research has shown.

Such legislation has been introduced — and killed — repeatedly in Annapolis over the past 15 or 20 years, in the face of staunch industry opposition.

But with hundreds of Maryland children still absorbing harmful levels of lead from their homes and public funds to deal with the problem in short supply, the city lawmakers say they believe it's time to try again. The measure's prospects should improve, Anderson said, if the entire city legislative delegation gets behind it.

"I understand the difficulties in trying to figure out who's liable," he said. "But the bigger picture is we still have a tremendous lead paint problem in Baltimore. It's the responsibility of the delegation to try to come up with a solution."

A recent Baltimore Sun investigation found that children continue to be poisoned as a result of inadequate enforcement of a 1994 law requiring landlords to keep the lead paint in their homes from deteriorating. The number of lead-poisoning cases has declined 98 percent statewide since that law was passed, but 262 children were poisoned last year, 129 of them from Baltimore. At least 37,500 city children have been poisoned in the past two decades, according to state figures.

While more enforcement would help, the current law is not enough, Carter said, and preventing poisonings once and for all requires a major investment that's not coming from government. Baltimore has about $6 million in local, state and federal funds to help about 200 homeowners remediate lead paint hazards in their dwellings in the next three years, but there are no similar funds to address the estimated 400,000 rental homes statewide old enough to contain lead paint.

Carter and Anderson say they're encouraged by a successful lawsuit in California that found three lead pigment manufacturers liable for poisoning children in that state. After a five-week trial in 2013, a judge in Santa Clara County ordered three companies to pay a combined $1.15 billion to remediate lead-paint hazards in homes in 10 localities, including Los Angeles County and the cities of Oakland, San Diego and San Francisco.

"It's a scourge of a problem," said Fidelma L. Fitzpatrick, one of the lawyers representing the communities. "It's not easily fixed. What the decision in California does is attack the primary cause of the problem."

The defendants in that case — ConAgra, NL Industries and Sherwin-Williams — have appealed the verdict, arguing that the facts and the law do not support it. An industry spokeswoman at the time charged that the judge's decision "rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint."

Thousands of lawsuits have been filed against Baltimore landlords for allowing young tenants to be poisoned by deteriorating lead-based paint. But proponents of suing the lead pigment industry contend it should be held responsible, arguing its executives knew or should have known before lead paint was banned that it was harmful to young children.

"Some companies were advertising the fact their paint was safe, that it didn't have lead in it," said Peter Earle, another lawyer in the California case.

Courts in Maryland and elsewhere have rebuffed such lawsuits repeatedly. A major sticking point has been the inability of plaintiffs to prove precisely which lead-laced paint was applied in their homes. Plaintiffs' lawyers say so much time has passed there aren't receipts or other records to show which paints were applied. Older homes often have multiple layers of paint covering walls and woodwork.

Lawyers with the firm of Peter G. Angelos tried a case 16 years ago in Baltimore against the makers of Dutch Boy paint, relying then on the plaintiffs' memories of what paints had been applied years before.

"The jury did not go for it," recalled Theodore M. Flerlage Jr., one of the attorneys on the case.

The measure drafted by Carter would get around that legal hurdle by allowing courts to hold businesses accountable for harm based on their "market share," or how much of a given product they sold in the state.

Dale Leibach, a spokesman for the lead paint manufacturers, said this week that the three companies held liable in the California case are awaiting a date to make oral arguments in their appeal. They contend that they sold lead-based paint in good faith before the health risks were known, and that owners of pre-1978 homes should bear the burden of dealing with it now.

Similar lawsuits have been defeated in seven other jurisdictions, Leibach said. A $2 billion judgment awarded against one-time lead paint makers in Rhode Island was overturned by that state's Supreme Court.

Brian E. Frosh, Maryland's attorney general, questioned whether litigation against lead-paint makers could succeed in Maryland, though he said he was not familiar with the California case. For now, he said he's focused on pursuing alleged misconduct by companies who buy the structured court settlements of lead poisoning victims for a fraction of their worth.

Advocates for suing the six companies that once produced and used lead pigment in paint say they hope the California case will lead to litigation in other states and eventually result in a broader settlement, similar to the one tobacco companies agreed to. In 1998, cigarette makers promised to pay 46 states hundreds of billions of dollars for the health harm caused by selling products they knew were both addictive and carcinogenic.

"Let the giant companies that knowingly caused the problem pay for its consequences, not the taxpayers," said Saul Kerpelman, a Baltimore lawyer whose firm has filed many lawsuits against landlords on behalf of poisoned children.

While children deserve compensation for the harm caused by the lead they ingested as toddlers, Kerpelman said, the state needs to spend far more than it is now to prevent future poisonings by removing lead-paint hazards from older homes.

But Donald G. Gifford, a University of Maryland law professor who has studied the lead paint and tobacco litigation, said there are key differences. Gifford once served as a consultant to the lead pigment industry, but he acknowledged that there was evidence that companies knew lead was hazardous before leaded paint was banned.

Even so, Gifford noted that the industry stopped selling those products decades ago, while tobacco companies continue to sell cigarettes. And the severity of risk associated with lead paint wasn't as well known then as it is now, he said, pointing out that only in 2012 did the U.S. Centers for Disease Control and Prevention declare that there's no safe level of lead exposure.

Given the case law so far, Gifford said, Maryland courts aren't likely to accept the arguments made in California. The legislature could change the law to help such lawsuits, he said, but he questioned whether that would be the best or quickest path to preventing more poisonings. Litigation often takes years, he said, and lawyers' fees consume a large share of any award.

Gifford argues that the legislature should create a funding mechanism, which would be more effective.

"They can regulate and they can tax, and if they want to put an excise tax on cans of paint, that'll solve the problem," he said.

Carter acknowledged that the bill faces long odds because the General Assembly hasn't been willing to take the steps needed to eliminate risks of poisoning.

"If this were a different demographic, it would have been fixed," she said, noting the victims ore primarily poor, minority children.

Ruth Ann Norton, a longtime advocate for preventing lead poisoning, said she hopes lawmakers take a closer look at holding paint makers liable.

"This is an issue where we have now gotten it down to where it's a choice of money," she said. "We know how to identify the problem; we know what to do to prevent kids from getting sick. Now we need the money to deliver on that promise."

tim.wheeler@baltsun.com

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