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Advocates say lead paint industry should be held liable in poisoning of Baltimore children

With dozens of Baltimore children dead from lead poisoning, city health officials sent weekly reports to the lead paint industry's top health official in the 1950s, alerting him to the harm being caused.

He responded with mockery.

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Manfred Bowditch, director of health and safety for the Lead Industries Association, repeatedly shifted blame for the poisoning from the lead industry to Baltimore's poor. He referred to them as "slum-dwellers" who were incapable of being educated — and worse.

"It seems not too late to wish you a very happy New Years, despite the continued activities of Baltimore's little human rodents," Bowditch wrote to a city health official just after Christmas in 1955.

With lead poisoning still harming hundreds of children in Maryland each year, Baltimore lawmakers in the General Assembly are pushing — once again — to hold the industry responsible for generations of damage. To bolster their case, legislators, lawyers and advocates are preparing a dossier of the lead industry's activities over a century, unearthing little-known documents from decades past, including Bowditch's letters.

Correspondence, reports and advertisements — largely culled from court files — will be submitted as testimony in Annapolis as the lawmakers attempt to pass the Maryland Lead Poisoning Recovery Act, which advocates say would make it easier for plaintiffs to win lawsuits filed against manufacturers of lead paint.

They are hoping to convince fellow lawmakers that, much like tobacco companies, the lead industry knew its product was harmful as early as 1899, marketed the paint to children anyway, and then callously dismissed the damage caused.

"The paint industry knew about the dangers of lead, and they still sold lead-based paint to the public," said Del. Jill P. Carter, a Baltimore Democrat who is among the leaders of the effort. "They have never been held accountable for the thousands of children they poisoned."

Industry representatives have denied knowingly harming children and have successfully fought lawsuits in Maryland and elsewhere. Several paint firms have hired lobbyists to fight the effort in Maryland.

Tim Hardy, a lawyer for former lead paint manufacturer NL Industries — which is lobbying against the bill — argues that it doesn't make sense to hold modern-day paint companies liable for actions taken decades ago. He dismisses the legislation as a money-grab by plaintiffs' lawyers.

The bill would "allow people to sue companies that had nothing to do with the house or the kid or any injury," Hardy said.

Advocates hope the legislation will gain momentum this year after lead poisoning in Flint, Mich., and the death of Freddie Gray made national headlines. Gray, who died after sustaining spinal injuries in police custody, suffered from lead poisoning as a child.

They also point to a Baltimore Sun investigation that reported in December that at least 37,500 Baltimore children have been poisoned in the past two decades in part because of lax enforcement of state laws.

"Every poor child in Baltimore City is in a house that's exposing them to much more lead than the children in Flint are being exposed to," said Saul Kerpelman, a Baltimore lawyer whose firm has filed many lawsuits against landlords on behalf of poisoned children.

"Lead is a root cause of bad schools, the dropout rate, drugs and crime. We as a society are paying for this, and the people that caused this giant mess are standing on the sidelines laughing."

Gov. Larry Hogan's administration is studying the bill and hasn't yet taken a position, spokesman Matt Clark said. He also noted that the governor is "strongly committed to protecting communities and families from leadpoisoning" and has called for all 1- and 2-year-old children in Maryland to be tested for lead poisoning.

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Prominent in the advocates' dossier of court documents are Bowditch's letters to city officials and other organizations. A Harvard alumnus, Bowditch believed the problems of lead poisoning in Baltimore were caused by irresponsible behavior on the part of the city's children and parents, not necessarily the industry's products. He argued that until conditions in Baltimore's "slums" were improved, there was little the industry could do.

Bowditch ridiculed Baltimore children in the letters — after the city became the first in the country to ban lead-based paint from home construction in 1950. The product was banned nationally in 1978. Maryland has passed laws requiring that properties built before then be inspected and certified as safe before being rented.

In 1951, Bowditch joked about Baltimore children chewing on lead paint in a letter to the American Public Health Association. He said education was the key to solving the problem of lead poisoning.

"While there appears to be all too much 'gnaw-ledge' among Baltimore babies, I am not alone in the opinion that we adults still lack the well-rounded knowledge essential to an all-out preventive attack on this very difficult problem," he wrote.

In a letter written in 1956, he expressed doubt that black and Latino parents could even be educated on the issue.

"Next in importance is to educate the parents, but most of the cases are in Negro and Puerto Rican families, and how does one tackle that job?" he wrote. Around the same time, he sent a letter to a health official in England saying, "The only real remedy lies in educating relatively ineducable category of parents. It is mainly a slum problem with us."

Bowditch died in 1960 in New York City at age 69. He was the son of Henry Pickering Bowditch, the dean of the Harvard Medical School.

The letters show a callousness to a known public health risk, says lobbyist John A. Pica Jr., a former Maryland state senator who helped lawmakers compile the dossier.

"It's the most despicable, egregious conduct in the history of American business," he said.

Hardy, the lawyer for a paint company, sees the letters differently. He argues that Bowditch's words have been "cherry-picked" and presented "without context."

"His language is not PC [politically correct] by today's standards," Hardy says. "He was describing the problem of poor kids eating paint, which he agreed needed to be addressed. We would never use that kind of language today."

The dossier also shows how long the industry knew that lead paint was dangerous to children.

According to the documents, the Sherwin-Williams Company's newsletter as far back as 1899 included research stating that "white lead is a deadly cumulative poison ... any paint is poisonous in proportion to the percentage of lead contained in it."

A Sherwin-Williams spokesman did not respond to requests for comment for this article, but the Fortune 500 company has argued in the past that irresponsible landlords are to blame for modern-day lead poisoning.

In 1904, the company's newsletter cited French research that "condemns the addition of white lead to paints and all colors containing it, declaring them to be poisonous in a large degree, both for workmen and for the inhabitants of a house painted with lead colors."

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Yet lead companies marketed their products to children, the documents show.

A marketing brochure printed in 1923 in National Geographic for the National Lead Company, now called NL Industries, contained cartoons and comic books.

"The little boy's eyes shine with excitement as he takes his new lead soldiers out of the box on Christmas Day," one ad states. "Made of lead, they will not rust or mold as did the toy soldier of Field's 'Little Blue Boy.'"

The same year, paint-manufacturer Dutch Boy — now owned by Sherwin-Williams — marketed their lead paint to children, the documents show.

"Do not forget the children. Some day they may be customers," the documents state. "We are not even overlooking the children in our campaign for record paint businesses this fall. ... Another effective method is to mail the paint books to the children of prospective customers."

Between 1931 and 1951, 83 Baltimore children died from lead poisoning, the documents show.

The bill Pica and other advocates are backing would open lead-based paint manufacturers to more lawsuits under the legal theory of "market-share liability" — after several high-profile lawsuits failed.

The theory suggests that makers of lead-based paint would share in all of the damages caused by the toxic metal based on their sales, even if it can't be proved that a particular product poisoned a specific child. Advocates for lead-poisoned children say such a law would significantly improve the chances of winning claims against paint manufacturers.

The bill — sponsored in the state Senate by Baltimore Democrats Joan Carter Conway and Catherine E. Pugh — would also create a Lead Paint Restitution Fund. The Maryland Department of the Environment would use settlement and judgment money from lawsuits brought by local governments to prevent lead poisoning and address the needs of impacted children and adults.

"The neurological damage done from poisonous lead paint is mainly irreversible and permanent," said Pugh, a leading mayoral candidate. "The companies that did this should pay the price of abating lead from the homes in Baltimore City."

Such legislation has been introduced — and killed — repeatedly in Annapolis over the past two decades, in the face of staunch industry opposition.

But with hundreds of Maryland children still absorbing harmful levels of lead from their homes and little public money to deal with the problem, more than 30 delegates have signed on as co-sponsors of Carter's bill. The Senate version of the bill has yet to attract co-sponsors.

The Democrats say they're encouraged by a successful lawsuit in California in which 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 jurisdictions. The paint industry has argued that the judge's ruling "rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint."

Many of the documents in the dossier stem from a pair of unsuccessful lawsuits filed in 1999 by attorney Peter G. Angelos that accused lead paint manufacturers of conspiring during the 1940s and 1950s to cover up the dangers of their products, which have been linked to brain dysfunction in children.

A judge ruled in 2002 that the "voluminous" documents produced by the Angelos firm failed to "raise any material facts supporting a conspiracy." The companies paid major U.S. universities to research the toxicity of their paint in the 1950s so they could "give the most accurate information to the consumer public" about the potential hazards and safe use of their products, the court found.

Hardy argues that the evidence in that case and others shows that the lead paint industry is quite different from big tobacco.

"Plaintiffs have never found that the lead paint industry did any secret research or had special knowledge," he said. "The dangers of lead paint were well-known. The tobacco industry got in trouble because they did secret research and denied research. There's none of that in our industry."

But Pica sees evidence in the dossier of behavior even worse than knowingly addicting smokers.

The tobacco industry "knowingly addicted people to tobacco, yes, but this is children," he said. "These people never paid for what they did."

The legislation comes after a recent 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 Sun investigation found that the system Maryland has set up to protect youngsters from lead-based paint is inadequately enforced and relies on data riddled with errors.

While the number of lead poisoning cases has fallen significantly, at least 4,900 Maryland children have been poisoned in the past decade, their brains exposed to a contaminant that causes lasting learning and behavioral problems. There likely are more victims, because not all children are tested.

More than 260 children were poisoned last year, 129 of them from Baltimore.

Ruth Ann Norton, a longtime advocate on lead-poisoning issues, said the documents are part of long history in which America did not take lead poisoning seriously. The League of Nations banned lead-based interior paint in 1922, but the United States declined to adopt the ban for another 50 years, she noted.

"Why is it the tobacco industry was made to pay but the lead industry hasn't?" she asked.

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