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Oxford' rnmmmmrnmm ......miiimmw w mb w ib h i.......................................................................................w.. 0 ESSELT1 MNDEMUSA *J0. 752 1/3 I LITIGATION The Buffalo Ney/s/Sunday, April 18, 1999 _____________________________ l^ft^o-thirds of U.S. housing is affected ^ 'Continued from Page A1 their legal assault on cigarette makers of *' /lit makers. The same fundamental claim advanced in the asbestos and to- Vobaeco litigation and, more recently, [ V*in the firearms lawsuits -- that ^ manufacturers knew their product .... ^was dangerous but sold :it anyway fBy ERIC SIEGEL, SCOTT SHANE ana SEAN SOMERVILLE Baltimore Sun :--. is being wielded against the fKIead industry. I-*** Potential plaintiffs include tens ' ,Tbf thousands of people who in digested paint chips and lead dust as .^hildren, leaving them mentally BALTIMORE -- With the ink ^. impaired or with behavior prob barely dry on last year's $246 billion lems. tobacco settlement, some lawyers involved in that litigation are setting their sights on a new target: the manufacturers of lead pigment used in paint that has blighted the lives of poor, urban children for decades. The South Carolina law firm that played a crucial role in forging the states' tobacco settlement has urged state attorneys general to launch a . ^ "There is little doubt that the ^' lead industry knew lead paint was f poisoning kids for years," said Ar: thur H. Bryant, executive director of Trial Lawyers for Public Justice ; jofeL ^Washington. "There's certainly basis for massive litigation." *"l Lead industry attorneys also an* iicipate a wave of lawsuits. similar legal campaign against the While any legal challenge must lead industry and is assisting in a ;*"overcome a 12-year history of un private lawsuit filed in Cleveland favorable court rulings, advocates against the pigment makers. for victims of . lead poisoning have Peter G. Angelos has had eight been heartened by recent proce lawyers working for the past two dural rulings in cases pending in months preparing suits against the state courts in New York and lead industry that he says will be Louisiana. ' filed this year in Baltimore and a number of Eastern cities. Both Angelos and the South Carolina law firm of Ness, Motley earned hundreds of millions of dol lars suing the asbestos industry and then used that capital to finance v f In January, a state trial court in ^Buffalo ruled that makers of lead figment can be held collectively responsible under the market-share - theory in a 1993 case. Under that legal theory, the -half-dozen lead pigment makers See Lead Page A5 Would pay damages according to ` their historical share of sales, even ! if it couldn't be proved who made `the pigment that damaged a par ticular child. r The $26 million lawsuit was ii filed on behalf of two Buffalo tod> ~dlers who suffered permanent damage to their central nervous systems from ingesting lead-based paint, their' attorneys said. * They also have been buoyed by 4he success of the tobacco litiga^}Jiori, which showed that even the Tdfichest and most unyielding of in dustries is not immune. d Pierre Erville, an attorney in ; Takoma Park in Maryland's Mont gomery County and an expert on lead poisoning, said the time is ripe for lawsuits against the lead pigment manufacturers. "These cases are ready to go," said Erville, who worked until last year for the Washington-based Al liance to End Childhood Lead Poisoning. "There's a lot of re search. There's a lot of public awareness. Politically, this is the right time for these cases." Contrasting themselves with the tobacco industry, paint companies said they have not marketed household lead paint for decades and have paid for lead paint re moval programs. "A dozen lawsuits against us have been thrown out" of court, said Jeffrey Miller, executive direc tor of the Lead Industries Associa tion. "And I'm confident that the remaining ones will be thrown out as well." He said the industry would vig orously defend itself. Although the number of leadpoisoned children has declined in the two decades since the United States banned lead paint in home use, about two-thirds of the occu pied housing in the United States still contains lead paint, and lead poisoning continues to be a seri ous problem, especially in older urban areas, experts say. Young children in Erie County, N.Y., have tested at twice the statewide rate for dangerously high lead levels, according to a report last year by the .state Health De partment. v The state reported on 10,333 children younger than 2 who were tested for lead poisoning in 1996 in the county. Two percent of them tested high enough to war rant some form of medical atten tion. The state average was 0.8 percent. In Niagara County, N.Y., the rate was almost half the state average -- 0.46. Analysts said Erie County's rate was a fimction of the older hous ing in Buffalo's inner city. Deteriorating residential leadbased paint is not the only source of trouble; children also can get lead poisoning from soil, imported goods such as pottery or vinyl blinds, or exposure to a parent or caregiver who works with lead. That is often part of the legal defense of landlords sued by young tenants who have been di agnosed with lead poisoning. For years, landlords have been the main targets of attorneys in volved in the lead issue. "It's been like the siege of Sta lingrad -- fighting house to house against the landlords," said Boston attorney Neil Leifer. But now attorneys are turning their attention to lead pigment manufacturers, with hope that suc cessful lawsuits could generate enough money to eliminate lead as a housing problem, said Baltimore attorney Saul E. Kerpelman. "Even the landlords would like that," he said. "They say, `I didn't put the (lead)v paint in there. Why should I be responsible?' " Kerpelman 4feels the case against the lead industry is even more compelling than that against tobacco companies. "You don't have an adult who picked up a pack of cigarettes that had a label that said: `Caution: Smoking can cause cancer,' " he said. "Instead you have a little kid who gets poisoned typically be tween the ages of 1 and 3, just by sucking his thumb." Many plaintiffs have sought* damages under the market share theory of liability, aimed at getting the companies to share the cost of paying any damages. Courts have accepted that theo ry in the case of DES, a synthetic female hormone later found to cause cancer, but largely rejected it in cases involving lead pigment. A motion is pending to allow the theory approved by the Buffa lo court to be* applied in a suit filed a decade ago against lead pigment manufacturers by the New York City Housing Authority to recover millions of dollars in lead abatement costs at two city hous ing projects. Another potential blow to the industry was struck in March by the Louisiana Court of Appeals, which gave class-action status to a lead paint suit against the New Orleans Housing Authority, allow ing as many as 2,000 lead-poisoned children to sue as a group. If the ruling survives appeals, it also might apply to future litiga tion against lead pigment makers, said Jennifer N. Willis, the attor ney suing the authority. "The interesting part of this is that there's an incredible impact on governmental resources as a re sult of lead poisoning," said attor ney Michael J. O'Shea, who repre sents the children. But some say the lead industry cases have yet to generate the kind of damning internal corre spondence revealed by the tobacco lawsuits. i That could change as more law- j suits are filed and more records uncovered, said Robert V. Perci- val, an environmental law profes sor at the University of Maryland. News Staff Reporter Michael Beebe contributed to this report. N39030.01