PHILADELPHIA -- For decades, it's been the stealth epidemic. Now, a battle is being waged to combat lead poisoning. But are we fighting the wrong enemy by going after the paint companies?
While the number of lead poisoning cases for children under age 6 has dropped from 14.8 million in 1978 (the year lead paint was banned) to 890,000 today, lead poisoning remains a serious problem. More than 7,000 children are exposed to lead paint in Baltimore each year, and 1,200 are poisoned. Poor children are five times more likely than others to have high blood-lead levels.
Unless the child of a famous athlete or actor is afflicted with lead paint poisoning, this issue will remain in the shadows of public opinion. There's no poster child to put a face on the disease, such as Michael J. Fox for Parkinson's Disease or Christopher Reeve for spinal cord injuries. Since this epidemic most affects the poor, no one seems to care.
Exposure to lead can lower IQ scores and cause learning disabilities and hyperactivity. High levels of lead in the blood can lead to brain damage, seizures, coma and death.
Bolstered by successful suits against the tobacco industry, many states and cities are trying to hold paint companies responsible for major damages and costs associated with lead poisoning. They hope to recover large amounts of money from paint companies through litigation to help pay for inspections and massive cleanups of lead from old homes and for screening young children for lead in their blood.
The litigation is similar to the attempts to hold tobacco companies and gun manufacturers liable for the injuries those products have caused in that they are trying to make the lead paint manufacturers responsible for lead poisoning. If these lawsuits, which are surfacing throughout the country, are successful, it would raise money for lead cleanups that either are not being carried out or are being conducted with insufficient federal, state and city dollars.
Unlike tobacco companies, however, paint companies no longer produce the harmful product because lead was banned from paint in 1978. Since the current paint companies no longer produce the harmful product, the imposition of liability is more difficult.
Many current lawsuits seek to hold paint manufacturers liable under a market-share liability theory.
Market-share liability is imposed on each industry member based on each member's percentage of the product placed on the market. The theory applies where all the named defendants are potential wrongdoers, the harmful products are identical and share the same defective qualities, plaintiffs cannot identify which defendant caused the injury and virtually all of the market manufacturers are named as defendants.
The theory was first used in a California Supreme Court case involving DES, an anti-miscarriage drug with an identical formula manufactured by several companies. But most courts, many in the East, have declined to apply market-share liability to lead paint manufacturers.
For example, a 1997 Pennsylvania Supreme Court case declined to apply market share liability to a lead paint case involving a home built in 1870, reasoning that from 1870 until the lead paint ban in 1978, several pigment manufacturers entered and left the lead paint market.
The Milwaukee City Council recently delayed voting on whether to file suit against the lead paint industry, reflecting a concern that similar suits have failed and that the suit would cost taxpayers millions in legal fees and take years to resolve.
While lawsuits against the lead paint industry have not succeeded, many lead poisoning victims have successfully sued landlords and property owners for negligence, breach of warranty of habitability and violations of consumer protection statutes.
Lead poisoning victims also have federal remedies. A mother recently sued the Philadelphia Housing Authority alleging that her home had lead paint in an amount 28 times over limits set by the U.S. Department of Housing and Urban Development (HUD). A federal judge denied the authority's motion to dismiss the mother's complaint that the agency violated HUD regulations.
In August, HUD announced that it will provide $104 million to enforce new lead-safety regulations to pay for lead tests and to expand lead abatement and inspection.
While children on Medicaid are supposed to be screened for lead at the age of 1 or 2, fewer than 20 percent nationwide are tested. Last year, Missouri sued two Medicaid providers for breach of contract and Medicare fraud, alleging that the plans failed to screen their St. Louis pediatric patients for lead, as federal law requires.
Earlier this year, Maryland Gov. Parris N. Glendening and Baltimore Mayor Martin O'Malley pledged $50 million to address lead poisoning by enforcing lead paint violations, expanding blood screening programs and abating lead hazards in high risk housing. Maryland's legislature passed a bill requiring infants and toddlers in high-risk areas to be tested for lead poisoning.
Maryland's recent commitment is an example of why states should not rely solely on a tenuous market-share theory, which could take years to play out in courts. Painting black hats on the paint companies and vilifying them is not solving the immediate problem.
Instead, states should budget an extensive amount of money directly toward cleanups of old homes, screening of children, enforcing existing regulations regarding lead paint and public education.
We wiped out polio and many other diseases. Hopefully, through litigation, legislation, enforcement of regulations and education, we can eradicate the scourge of lead paint poisoning.
That's why one of the goals nationwide should be to prevent future lead poisoning incidents -- not just by cleaning up lead from older homes but by funding ad campaigns and public service announcements promoting screening of infants as well as educating young children.
And other states shouldn't wait for the war against paint companies to play out in the courts. They should follow Maryland's lead in directly trying to get the lead out.
Larry Atkins is a lawyer and writer who lives in Philadelphia.