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Will lead litigation follow the path blazed in asbestos cases? Lead Paint: Old Coats by TOM GAUTIER and]ULIE LARSON BRICHER MUNVE '"'ENHAUS P `H A SBESTOS LITIGATION: these two words alone are enough to conjure up fear in the heart of asbestos manufacturers, their attor- neys, and the court officials who are stymied by the sheer number of cases now before them. These words also are enough to elicit anger and irustration from the hundreds of thousands of asbestos disease victims and their families who for years have been denied personal injury compensation, as well as the countless public health officials and pia int i i i s ' attorneys who have tried to protect them. But even as.the-asbestp_s_deb_acc!eloas theLa).io<s - judiciaI system-, th ng an inereasinit n suits`I%&&ki)R b&##Schildren. who live iri the lio`have beem. and paint manufacturers and the industry`s leading lobbying group, the Lead Industries Association (LIA). Recently, a third leg to the lead litigation stool w a s established: Three painters in Pennsylvania riled suit in June against eighteen paint producers and the LIA, claiming that the defendants failed to warn the Tom Cautier is publisher, and lulie Larson Bricher 15 contributing editor, of the Asbesros Moniror. This article o r i g t n J l l y appeared in the Asbesros M O n l l O r (August 1991). J Hou,ionbased monthly newsletter that covers environmenial bu>inerr topics including lead and asbestos. and has been aaamed tor Business and Sotrely Review by Mr Cautter. rP 4,berror Monifor, 15995 North Barkers Landing, Suite 320. Houbton T K . i7079, 1-800-642-3228. workers of the hazards of their products. They are asking Third Circuit Court JudgeThomas O'Neill to approve the case as a class action, which would expand the base of plaintiiis to include Z 1,000 resi- dential, commercial, and industrial painters in Pennsylvania and New Jersey.It marks the first suit in the country brought by those exposed to lead in their occupation. I f it succeeds, i t could considerably broaden the number of such suits brought by workers in other lead-related industries. The arguments behind all three types o i lead litiga- _ __-----tio-n-.look remarkably s-im--i.lar .t-o th._ose ihat propelled I i tigation against asbestos products manuf a tt Urefs from the 1960s to the present. Cniortunaiely, the asbestos caseload in the courts hds been badlv mismanaged, resulting in several thousand \erdicts to date and a predicted 30,000 Jjbejtos personal injury cases in the federal courts Jnd doout 60.000 in the state courts. The question many are asking i s nhether lead litigation will follow the asbestos model Jnd become the next debacle in American courtrooms. Or can society find alternatives! While [he parallels to asbestos cases are signiiicant, etperts Jround the nation believe that the judicial $\>;em cJn learn irom the toxic torts established in !he ~ J >,IInd !)mer serve justice when it comes to lead .)nu :ne I.IL\. THE ASBESTOS PARALLEL Dubbed the "miracle mineral" ior I t s .irn.izing fireretardant properties, asbestos w a s LWJ8;) `-unrlreds of thousands of products irom building or-t,i.ilion. rooring products, and automobilv ! J r , i i e qgs to toasters, children's playbox jdnd .i:*,j I )*.p!n7T. Hundreds of thousands o i w o r i . t l r G .*."11 ,:iinvd. ' The author stands belbre J Soviet tank in Moscow. The Communist economic system, managing against a l l odds to muddle through, is a triumph over common sense. More than 8 5 percent of a l l Soviet products f a i l to meet minimum western standards o i quality. The USSR Cabinet of Ministers maintains what MOICOWNews calls "Olvmpian calm" as inilation - e:!imated to be as much as 750 percent !his year - rages out of control. Five years ago, one dollar would bring three rubles on the black market. Today, western tocrists don`t need the ubiquitous street hustler to make J currency swap. Thev can exchange the same dollar ior thirty-two rubles at the bank. HOUSE OF FOOLS On m y last day in Moscow, I bought a unique, Baltic-made patio table and four chairs for a Russian iriend. The price? Nine hundred rubles, the equtvaient oi iour months' wages ior the average worker. The clerk was so delighted to get $30 ior the ce! that she ran out to the street and, with uncannv hand-signalling, quickly ilagged down the i i r s t driver, who gladlv hauled the table home ior 5 5 Ironicallv, the C .S. dollar remains the mightv lif-rsua iranca of the USSR. Inilation, budget deiicits, unemployment. and poveny were Gnce thought IC, be the evil legacie, of capitalism alone. The Cammunist bureaucrsts proved otherwise - and added another ior good measure. By printing rubles seemingly w:thout end, they have systematically destroyed their oLbn currencv and whatever incentive Soviet Lvorkers might have had ta periorm meaningful work. "We are living in a durdon,`' said Svetlana bash- ugina. An insane asylum. a house o i !OOIS. Soviet reiomers stress the all-too-obvious impor- tance oi ire? markets. But the neces5itv io p r i : ~!~e breeds the impulse to embezzle. .And \ ~ h obener ;o steal the show than well-positioned Communists alreadv i a t with perks, privileges, and p o s j e s s c : ~ ~ s . There i s indeed a irisson in the air, J lu>iIii`>ble exub-rance about traveling a new and ~ : : J C V -oJd to ireedom. There is also a sense oi ?\pec:Jncv. J ner\.ousness about the unpredictable Jn,irch\ c -nisr kets might bri ng. d v r iI Popov, ,\lo s cow 's rei or m- m i r? d t.d J \ o r has stressed the need ior a new l e g ~ l>\>;em,.iOCk: excnanges, competition, and a m a r h e ! I P ! - J \ : , L C - iure. A program that will take a decade io he said, "and it hasn`t even started yet." Perhaps that explains w h y the i\ e r J q v ;(I,. . e [ v : i z e n turns to humor ior solace. " I h.i\e .I ~ t , < ~ e s - i i c b r i , " ran a recent letter to the editor c' :ht. \ h x t m i \ ~ \ e ? i l \ , ,,4rgumenti I f a k t , . "Let's d e c l ~ i e..\Jr I ? ? .+-e Lnlted States or laDan. :hen c ~ p i t u I ~ [!hee ~~T~~ I ! i s ,nd become part G: their country." _1 kl`hcn Sandra and Lee Roseberry bought rhrs Fdrrnington, ,New Hampshire house in 1983. rhev did not know that the pafnt on the exrerior I$ J / / S contained 5 I percent lead. manufactured, and handled asbestos were exposed to the mineral's dust and have since contracted devas!sting asbestos-related diseases includini: asbestosis and mesothelioma, a rare cancer ot ihe chest lining. Because asbestos-related diseases average such long laier,cy periods - bet\veen t\venry and io* vears - the current litigation crisis has reached a point where a panel o i iederal judges h a concluded that the court system i s "unable io cope" w i t h the cases now bottlenecked in the courts. In the asbestos arena, there also i s a iear thst thousands o i additional cases could arise ::om "third wave" o i asbestos exposure. The term rerers lo the current Nave oi exposure to more t h j n 3d million tons o i asbestos put into place primarill A\ insulation in the United States irom 1900 to 1980 Those exposed include custodial, maintenance, dnd other workers ( ~ c h oencounter the tot I C miner31 \\kile working) and the pubiic a i large (who breathe asbestos in ships, iaiiories, apartment and oriice huiIdinTs, homes, and automobiles). The Colltyun. R.l-nazzini, a societv o i 150 leading environmentL; 2nd uciupationdl health scientrs(> irom tttr::v i ~ u n - tries. estimates that currently, in the United States ,tione, approximately 10,000 deaihs occur e a c h 3. .jar irom iung scarring and cancer asjociaied ~ i i h dast trom asbestos products. Other e\pt.ris have tOreCJjt that bv the \'ear 7000. t?opro\im,ireiv 2iJO.000deiihs will have occurred . n this cciuntw ,I> J result o i asbestos-relJted diseases. That Tisure c:ould climb to 265,000 by 301 5 . Clearlv, it715 :bird i \ d v e o i disease will add to the asbestos h : ~ c ~ t i o n ~ r i s i sin :ne courts, despite the EnvironmePr`>l Proit'ction Agency's (EPA) July 1990 ban 01 ine import. c\;)ort, or manufacture o i products cc'nidininq . I > ue>tos. LEAD E X P O S U R E -c5, in residenriai homes beiore 1 9 i 6 . and +A\rn `:ne velir-w painted lines 01 our roads!. ouilc`is ii:**p J 12 BL'SINESS AND SOCIETY REVIEW ~~ Nightmare in New Hampshire .For the R m family, the white clapboard farmhouse on Bunker Lane in Farmington, New Hampshire, was an American dream come true. Lee and Sandra Roseberry bought the house their first - from the Veteran's Administration in 1983. Within two years that dream had turned into a nightmare: Sandra Roseberry miscarried, the family dog began to have epileptic seizures, and two of the three Roseberry children, Amanda and Julianne, then ages three and ten-months, respec- tively, were found to have unacceptably high levels of lead in their blood. The Roseberrys had the house tested for lead and results showed that paint on the exterior walls contained as much as 51.7 percent lead, or 800 times the permissible level. The walls in the children's bedrooms were covered with paint that was 10 percent lead. It is considered hazardous to expose young children to paint with a lead level higher than .06 percent. Young children are particularly v u m o exposure to lead, which can cause many developmental problems. The state of New Hampshire's test was con- clusive: The Roseberry's home was poisoning their children. Subsequently, Amanda and Julianne had to undergo monthly blood tests to monitor their levels of lead. "First a finger prick test at the Well Child Clinic, which always tested positive. Then a veinous blood drawing which proved traumatic for both girls," Mrs. Roseberry said. "They became terrified of the doctor." (Paul, the Roseberry's son, who was six when the lead was discovered, did not have an abnormal blood lead level.) The family found that a 1972 federal .law required -the government from which they purchased the home aiter a foreclosure sale - to inspect for and correct any defective paint conditions before selling a property. The realtor who showed the Roseberrys the house was also a property manager on the VA's payrolI. With the test results, the Roseberrys went to the VA. "We told them 'We have a white elephant here. The children are poisoned.'" But the VA contended that because the family bought the house in an "as is" condition, the agency had no responsibility to pay for the abatement of the lead. With the test results in hand, New Hampshire health oificials told the Roseberrys they had thirty days to abate the lead or vacate the property. With- out a spare $30,000 to $38,000 - the estimated cost of removing the lead paint hazard - the Roseberrys left their home. many body organs and functions, including the central nervous system and brain. Fk&effects,.ot exposure.taJead-range from lowered IQ, mental retarddtren+behavitwal problems, and learning dIS- - abitttres to hearing kiss, impaired growth, chroni? -- loint.and bone Droblems. and even death. An estimated 57 million residences in the United States still contain lead-based paint, according IO the U.S. Department of Housing and Urban Development (HUD). Windows, sills, woodwork, baseboards, porches, walls, floors, fences, and stairs Jre often sources of chipped paint and fine dust. HCD also estimates that it will cost between 52.000 a n d 5 12,000 per residential home to remove lead-based paint. One MUD.report estimated that i t could cast the-nation as much as 5499 billion to r e w w 311 7RRtmfrat 1cad-based paint. inis tigure. or cotme. $06nor rttiect tne -5 paint that in &ices, schools, or industriat buildidks. Vor U reilect the potential lead exposure crtizen8ke'irom -a host of other sources soil (and the t o o w o w n in itt&ntaminated by l e a d - b a d insecrrcides. hJph- way - pOllution,-water pipes and soldered plumhi nq made with lead, auto exhaust and industrial smelt- ers, iood in cagsAw lead seams, home renovdtion., 3 r d hobbies, such as target shootinq and w i n e d Glasswork, that create lead dust that c3n 9 e c o h e airborne. Such statistics, coupled with growir.2 public Awareness of the documented hedltn r 1 . k I S propelling lead litigation forward. Becauce :r.id k.is been so widely used in so many produc;, .ifid manuiacturing applications, i t i s diriccult io :ell L ~ ~ - much litigation could result. For now, I J w ~ u .~etn~i p r i m a r i l y aimed a t reducing the hazJru\ t,t 4 i d - - They moved to an apartment in Portsmouth but could not afford both rent and mortgage pay- ments, When they fell behind on their house payments, the VA began to initiate foreclosure proceedings i n 1989. To stall the loss of the property, the Roseberrys declared bankruptcy. Meanwhile, the Roseberrys tried to sue the government. Under federal law, however, the United States government cannot be sued unless the claim is also actionable under state law. New Hampshire does not require homes to be inspected for defective paint prior to sale. This legal exception blocked a lawsuit. Lead-based paint i s present in as many as 57 million American homes built before 1980 and about 20 million of those homes contain chipping, peeling, or flaking paint at unacceptably high lead levels, according to the Department of Housing and Urban Development (HUD). Sandra and Lee Roseberry began to become more politically involved after the unsuccessful litigation. In April 1991, they were asked to testify before a House subcommittee investigating the dangers of lead-based paint in housing. ' "Our children suffered a iife-threatening poisoning that will affect the rest of their lives, all because a federal agency neglected to comply with the federal regulations," the Roseberrys told the Subcommittee on Employment and Housing. "How can we explain to our children what has happened to them?" Several days after their testimony, the Veteran's Administration contacted the Roseberrys and offered a settlement, said Mrs. Roseberry. The mortgage on the home was written off and they were paid $61,000. Mrs. Roseberry is not happy with the settlement. The home, which they originally bought for $30,000, carried a monthly mortgage of $227. Now, she says the family pays twice that in rent. Buying a comparable home in today's real estate market, she says, would cost them between $800 and $900 a month in mortgage payments - more than three times what they had previously paid. And more important, she says, the effects on her children are still unknown. In the settlement, the Roseberrys refused to waive the right to sue in the future for health problems that their children may yet develop. The effects of lead poisoning often take years to develop. "It remains to be seen what damage was caused," said MK. Roseberry. "There are a lot of questions up in the air right now." -jEFFREY ZACK based paint, which represent one ot the most justice (TLPJ), a public interest law iirm that exposes preventable threats to public health. m d corrects outrageous corporate and governmen1 misconduct through litigation, the.LeacL industrv ~ J S SMOKING GUN? In his widely acclaimed 1985 book, Outrageous Conduct, Paul Brodeur, a New Yorker senior editor, detailed the fifty-year cover-up by asbestos manu- known-of the hazards since the 1930s. .As wrlh *-J%esIos, inere IS an off-targeted group or producers ,hecause a rew companies are responsible ior ,llnloi[ -*/ facturers o i the health hazards the mineral posed to the Unlted States, including S h e ~ i n - b ' d l i ~ m.Lr o.. ' workers exposed i n shipyards and manufacturing Fu(Les:.O'Brien-Corp., Eagle-Picher, Ctiddrn C e . +plants during the 1930s, 193Os, and 1950s. The defendants in these cases were often the same Eagle Picher Corp Kecne COrp., and Johns-Manvilig; to name a few. Muc of the toxic tort estab- .AIlant ic ..RichiieI d Cso- tries. .ind 5C\tw cC6_rp.d rew ot the leading cases a r e d I s c u , . e i l t,elow: In November 1987, TLPJ with a s s o c i a i d \\.i...i- lished during this period centered around the c hujetts-based attorneys iiled the iirst I J Q S U I ~ . n ::r asbestos industry's failure to warn of the dangers n,ition against lead manufacturers and the L I A Dosed bv , exDosure I to- as.b_estos. The.'!failure IO warn'"'argument IS the crux oi the lead litleation ' ltehali o i Boston children who suiiered l r o m '...i11 paint poisoning. According to the TLPI. cloc L!.*t*rll> now on the rise. re\edl that the manufacturer knew oi the ! ~ . i t i ;j.i.-?t How long did lead pigment and paint manuiac- ctJnger since the early 1930s. yet wvpre**t.li * * - e turers know of the hazards ot' lead? According IO information and continued to market Ir.it! , ~ . I C ' Y ~ axorneys atiiliated with the Trial Lawyers for Public ;)roddCtj. For example, the attornevs o n I 14 BUSIhESS A h 3 SOCIETY R E V I E W As Litigation Grows, So Too Does Lead Abatement A new market for lead abatement as a result of increased public awareness and lead litigation already i s fast growing. Richard K. Miller and Associates, Inc. estimates that the 1990 leadbased paint abatement market i n the United States was $100 million. The research indicates that the largest initial market will be public housing authorities, of which there are 3,281, controlling a total of 1.3 million housing units. -Future Technology Surveys, Inc., of Lilburn, Ceor- gia, estimates that by 1995 the lead abatement market will be about $327 million and, during the decade, we w i l l have spent $ 2 billion to abate the lead paint hazard. According to environmental business analyst Neil Wernick of RifkinAVernick Associates, the largely unregulated lead abatement market currently i s divided into six segments, all of which are experiencing market forces beyond ,legislation. Those markets are: industrial, municipal (bridges, guardrails), commercial, private housing, marine, federal government structures, and aviation. Lead abatement technology, he says, will emerge as a viable market in the next two to three years. He adds that the most impor- tant opportunities are i n the areas of worker protection, particularly in protective garments and respiratory equipment. Says Wernick, "In the asbestos control market, the primary driving force turned out to be the Asbestos Emergency Response Act rule for schools, which caused acceleration in removals and management of the hazard in commercial and industrial facilities for quodted- a 1 ' r a /Associa- rion a r w i r n m m k t reported more than - ren - most I causedhy exposure to paint and makes reiecence _to the .-- of the In lune 1989, the first lead paint abatement Idwsuit was iiled on behalf oi New York City against future costs to remove lead from a l l of the city') public housine. The wording of the corn- r- rors words used in asbestos litigation, charging that *he defendants "conspired to conceal from or ers, consumers, appliers, s . . . with respect t6 daB liability reduction on the part of property owners. As with asbestos, there are bills i n Congress dealing with lead and there are the HUD guidelines, etc. But ultimately it might not be a legislative or regulatory driving force, but more a liability-reduction driving force, so that people who own structures that contain lead find it i n their best interest to remove and manage the hazard. Do-it-yourself lead product testing kits have also sprung up as a result of market demand. Dion Burkard, marketing representative for Environmental Perspectives, a Houston-based firm that offers one such kit, says that the average citizen would be surprised at what he can find at home that contains lead. "The public is becoming more aware and is demanding ways to determine what might pose a lead health risk. Recently, I ran a home test from our kit on some food cans on a television station here in Houston for a report on lead they were doing. The tests showed positive for lead in the cans. The next working morning, I had the FDA on the phone wanting to know the can numbers and where I had purchased them, and how recent the purchase was. The FDA, which is tracking the origin of the cans, speculates that they may have found their way irom a state that now prohibits food cans with lead seams to Texas, which allows them, through the food brokerage chain. "It's discoveries like this that are going to make lead litigation and lead legislation go from a warm issue to a hot one." and iniormation necessary to make an iniormed. reasoned decision whether or not to applv lead." In M a y 1989, the Housing Authorifv r,i \ ~ b Orleans (HANO) added seventeen paint ~ n pdi g ment manufacturers and suppliers as 1hird.p.irfv deiendants in lead litigation brought ,iqJinsf t h e ~uthorityby the guardians of 105 children t.\p,\e.d in public housing units. Plaintiiis' attorneb \ -( 1br:ht 5 2 , 2 m i l l i o n t'or each child, charginr: :h,t[ i n e *industry knew of the dangers oi exposure :u :-eir products. "There are a number o i annual .!nd i;t.Jrrerly reports that I reviewed," states Rov 4 n i . i d r e If Jn Jttorney afiliated with the New 0rle.ins ( ) w \ .that clearly show the existence oi iull Lr?ti\\ :t-:ie d s isr back as the 1940s that lead-based ;).i4t:i .\.I?-/ hazardous to the health oi young chil(irtdr1 :.., LEAD LITICATIO"U ij -'know this- a-s_ a- re_su.lt of our review of over 4,000 LIA maae available to us." U In a potentially p r e c e a m g class action filed in the US. District Court in Philadelphia in No- vember 1990, the law firm of Creenfied & Chimicles and the TLPJ filed suit with the city and its public housing authority against seven manufacturers and the LIA and on behalf of a l l American cities with populations of more than 100,000 and their affili- ated public housing and health agencies, seeking to make the companies pay for all present and future costs of lead abatement. Attorneys say that filing this case as a large class action will provide a better chance of "solving the entire problems in one shot." The complaint alleges that the lead manufacturers knew of the dangers for nearly sixty years and did not issue warnings except to recommend that lead paint not be used on children's cribs and toys. In addition, the suit cites a 1939 National Paint, Var- nish, and Lacquer Association memo that stated to its members - many of which are now defendant -companies in this case that lead was a toxic agent and warnings should be issued to users. u r , S U Complaint, lead paint producers continued use through nt large a r n t 30 lobby against m d i c a l evidence that -their product wsed a health risk. In th-cem mad-related class action suit filed in Philadelphia by& thrpe half of kms&!es and 21,000 cot es, one of the attor- neys working on the case, Jet?Cohen of Perlberger & Associates, notes that "there is much to suggest in the investigation we've done prior to filing the complaint that the lead manufacturers were very, very well aware of the occupational hazards of exposure to lead-based paint. It was well known by the medical community for a couple of centuries and it was not controversial that lead was toxic. In terms of the knowledge of the particular companies, we have public documents that were not obtained through discovery that there was early knowledge of the hazards of lead paint." Indeed, Cohen and the lead attorneys on the case contend in the suit that the painters in the trade were targeted by the LIA and the manufacturers in published propaganda that attempted to counteract indisputable evidence that lead was dangerous, encouraging painters to use white lead-based paints. In the National Archives, Cohen found a 1914 study that examined hospital records o i workers and the various aiiments for wnich they came to be exam- Lead Balloons? The top ten uses oi lead in America in 1989 were: Use Metric tons Storage batteries 1,012,153 Ammunition 62,940 Paint, glass, and ceramics 57,984 Cable covering 22,605 Sheet lead 20,987 Solder 17,009 Casting metals 16,175 Pipes, traps, other extruded products 9,818 Brass and bronze billets and ingots 9.610 Other uses 42,684 Source: US. Department of the Interior ined. Hd- that a significant number o f w r s w a i n t e r s who had come in tor leaa poisoning. TLPJ's executiv-er id on several of the group`s lead litigation cases, Arthur Bryant, comments that the failure to warn i s the most obvious parallel between asbestos and lead lit- igation. "Both the asbestos and lead paint industries knew for decades that the products they were making were killing and injuring innocent people, and they didn't warn anybody and they continued to sell the product and actively reassured people when they shouldn't have. For decades, both indus- tries valued profits over lives." The LIA (whose representatives could not be reached for comment for this article) has consistent- ly denied any wrongdoing. LIA's counsel, .\\ark Sullivan, of Sullivan, Sullivan L? Pinta in Boston, told The Wall Street journal that the LIA "has been extremely responsible in disseminating information about medical problems associated with lead." WHO P A W TLPj's Bryant adds that there are two questions IO the problem: The first is sorting out what the !e3d industry knew about the hazards and ishen. ihe second is how much they should pay. "The anSb%er ro the i i r s t is crystal clear," he says, "thev knew J long time ago. The asbestos industry has essentiJllv been held liable in virtually a l l of its cases, and that will happen in the lead industry. The only q ~ e s ~ i o n i s bvho does the lead industry pay and how much'" Roy Amedee, the New Orleans attornev, :\ho has been involved in more than 100 lead cases in ih.31 city, agrees. "The parallels are simi13r 11 B L S I h E S S A h D SOCIETY RELIEW Lead Tests Children should be tested for lead poisoning unless they live i n areas where widespread screening has revealed no problem, according to the Centers for Disease Control's advisory committee on lead. It recommends screening at twelve months and then again at twenty-four months. High-risk kids (from older, run-down homes) should be tested earlier and more often. Make sure doctors use the "blood-lead test" instead of the FEP (Free Erythrocyte Protoporphyrin) test, which i s extremely inaccurate. If results show elevated levels, get a confirmation test because even the blood-lead levels are inexact. The blood-lead test should cost about $30. - Newsweek July 15, 1991 misrepresentation and the concealment of the hazardous nature by the asbestos and lead manufacturers themselves. The eifects of the two substances on society as a whole are enormous. Lead is more systemic to society and you'll find it in more accessible areas, whereas asbestos was used in more industrial applications and in inaccessible areas. "The solving of the lead problem will be much more involved than asbestos because of this. But until the industry comes forward and accepts responsibility, this will be entirely impossible. .And they haven't come forward. The conspiracy theory has not yet been tried so until they are found to have participated in a civil conspiracy to misrepresent the hazards of the lead pigment put in the paint, we will have to continue to litigate." But what about making insurance companies pay? Asbestos litigation often brought insurers into the fray, charging that policyholders were entitled to compensation. Many of those insurers have paid. either directly or indirectly. However, today, the insurance industry has implemented p o l i c v exclusions that deny coverage for environmental hazards such as lead. Marc Vink, vice president oi loss control r'od3delity Life Insurance Co., one or the nation's largest environmental insurers, explains: "In the 19805, insurance companies were deluged by 50th kinds of suits and they got out o i anything IO do with asbestos so that contractors removing i t found themselves without any kind of general liability coverage. Typically, you find now tha: companies that provide them with coverage include asbestos into the policy specifically, despite other exclusions. "But the asbestos problem prompted a general pollution exclusion that includes all other environmental contaminants unless otherwise reintroduced into the policy. So property owners are faced with the absolute exclusion limit in their coverage. It -would be very hard for property owners cities, for example, that have to provide housing for low- -income tenants and own multiunits of housing that typically have lead in them because their policy doesn't respond to it. Then we're faced with a city that doesn't have money to abate the lead problem, so the city looks for a way to recover the costs." Plaintiffs, therefore, are suing the lead industry directly, which indirectly puts pressure on the insurers. Still, the question of whether lead companies will go bankrupt as a result of increasing claims by property owners and personal injury plaintifis remains. In asbestos, virtually a l l of the manufacturers have declared bankruptcy, and the hlanville Settlement Trusts for property damage and personal injury are on the brink of depletion, having paid out nearly $ 1 54 million to nearly 25,000 claimants. Meanwhile, the number of class actions on behalf of asbestos victims has risen. Plaintiffs' attorneys say they have learned much irom earlier asbestos litigation management, and likely w i l l be able to manage lead cases more eiiiciently. For example, while class actions were not the rule in the early days of asbestos litigation, now that the asbestos producers claim bankruptcy, asbestos victims' lawyers and judges across rhe country are trying to consolidate the claims into c l a s j actions in the hope that compensation can be made more quickly. Some of the more recent lead cJses are following this strategy. "The personal injury cases will really parallel asbestos cases." \e11 Leifer, an attorney with Thornton 9 i a r l v . the I J W rirm involved in the lead litigation eltort in rhe c I i b or' Boston, states, "Frankly, I don't see eirher the Loluntary underwriting of abatement or compeni ~ t i n gchildren who have been poisoned bv [he lead Industry. The question i s how do - e c r e j t e J mechanism to accommodate all of the cases \\ ilholJt habing the number of asbestos cases we habe I think Jtrorneys representing children and c i t i e s 5 . 1 ~ e looked z: what happened in the asbes!or lilj<Jtinn victories in lead Litigation on the Rise As knowledg,about the dangers of lead paint grows, so daverdicts and settlements in lead poisoning cases' Courts around the country are beginning to recognize the severity of lead paintrelated injuries and punishing defendants accordingly. The following recent victories highlight this trend: In October 1989, two Yale law students won more than $1 million for a lead-poisoned child in a nonjury trial in federal court i n New Haven. Allison Zieve and Elizabeth Lampe sued a Connecticut landlord, holding him liable for a tenant child's decreased brain function. It was the first case of its kind in Connecticut. On July 11, 1990, the US. District Court for the District of Massachusetts awarded $241,000 to a woman who bought a lead-contaminated house from H U D in 1978. HUD repainted the house three time3 i n two years but never removed the old lead paint. Jeffrey Petrucelly of Petrucelly & Nadler successfully sued HUD under the Federal Tort Claims Act after the woman's daughter was treated for lead poisoning in 1982. * O n September 7, 1990, a Massachusetts Superior Court judge, under the state's Consumer Protection Act, awarded $605,755,trebled, plus costs and attorney's fees, to a child poisoned by lead paint. The victim's landlord deliberately failed to tell tenants of lead paint in the apartment. O n September 12, 1990, four landlords paid $967,500 to settle cases brought on behalf of four Baltimore children. The suits alleged that the landlords allowed the tenants to live i n rooms with chipped or peeling paint. and are trying to navigate their clients through as quickly as possible. "But what can't be avoided is that for children the cases are different and a class action remedy is impossible. For property damage, it's more logical for classwide action or some kind of consolidated approach because damages are more easily qualified and the nature of the problem is more classifiable in all cases." Jeff Cohen, the attorney working on the Philadelphia painter's case, believes that a class action brought on behalf of all painters is a step in the right direction to alleviating iears of a backlog. "This i s definitely the first case of its kind pitting an entire trade, we hope, against the lead manufacturers. It's counterintuitive, given the case of asbestos, that workers from different industries associated with -lead exposure haven't sued more. I guess children rank high in the public interest and abatement costs are so high that cities need the relief and make the cost-recovery efiort. "The personal injury cases really w i l l parallel asbestos cases. One of the reasons we brought d class action was because we believe that the euperience with asbestos cases clogging the courts \%ill influence the court not to want to have the same situation occur. I think asbestos litigation has paved the way and forced the courts to deal with a lot or issues that hadn't been dealt with before." Cohen also notes that a class action on behali o i the painters will afford the opportunity for a decision by the court to establish a fund (by the deiendants) for periodic blood tests of current and iuture members of the class to reduce exposure, thus preventing more litigation by the same class. NEW LIMIT In any case, the sheer number of lawsuits may escalate dramatically due to the numbers of people now exDosed and to growing public awareness. induce more lawsuits. Roy Amedee says that the new limit will quddruple the number of oiiicially classified lead poisoned children "and we'll have another asbestos situation on our hands." He predicts there will be manv more personal injury suits and that abatement iuits will iollow. "Public health facilities, hospitals. Jnd other medical care providers that treat these children n ill take notice and it will make people start looking [or lead in places other than the home." Fidelity Environmental Insurance's \lJrk \'Ink comments that the lowered CDC blood ! e ~ dIeLel m J y indeed increase the incidence oi childhood lead poisoning by magnitudes, which \\ill creJle d public uproar. "Public health centers do not h L i \ e [he monies to deal with the problem and :he InirJ\tructure isn't there to deal with the issue." One public health lobbying group hjs esiim31ed that many communities should iind that J j v.inb Js 50 to 60 percent of children will have u n J c c e 0 t j a i L Lead Levels The Centers for Disease Control has defined three levels of lead poisoning and corresponding action that should be taken: Children with blood lead levels of twenty micrograms or more should be medically evaluated and the source of lead exposure located and removed; Children with blood lead levels of fifteen to nineteen micrograms should receive case management, including nutritional and educational interventions and more frequent screening. If the levels persist, environmental investigation (including a home inspection) is recommended; When many children in a community have levels of ten or above, CDC recommends communitywide primary prevention activities. high blood lead levels with the lower limit. "Such prevalence rates," says the group, "indicate a serious environmental and public health hazard that demands communitywide primary prevention strategies." Vink also cites a preeminent study by Herbert Needleman, a physician whose research has established the scientific basis of low-level lead poispning, in which the doctor followed a group of children in Boston to discover the effects of lead on their bodies. initially, Needleman monitored the levels of lead found in the children's teeth, and ten years later, he checked again and found lead remained in the subjects' systems. The doctor found that the greater amount of lead remaining i n the -subjects had a direct correlation with increased social problems for the children social problems that cost taxpayers countless millions of dollars in terms of increased crime and a lost generation o i intellectual and creative activity. "He's not saying these people are dying," comments Vink, "he's saying that our future citizens are becoming sociopaths." ENVIRONMENTAL RACISM This warning and the potential tor future social deterioration has already lead to the first sounds o i what may beconie a public uproar. The first alarms have been issued from the leaders of those Ameri- cans perhaps most affected and most at risk - Airi- cart-Americans. Indeed, a growing campaign oi black awareness and social and political activism is currently under way. With the terms "environmental racism" and "environmental genocide," black minority leaders are attempting to unite the civil rights movement with the environmental justice movement. Considering the impact of the civil rights movement on American social and political changes in the past thirty years gives pause to wonder how loud the public uproar may become and what its impact may be. "Environmental racism," a term coined by Rev. Benjamin Chavis jr., is the banner being raised to alert blacks to the impact of environmental issues on black and other minority communities nationwide. Rev. Chavis, a noted civil rights leader and the executive director of the United Church of Christ's Commission for Racial Justice, released in 1987 what has become a landmark study by the commission - "Toxic Waste and Race in the United States." Armed with this report, he is developing support among other black leaders to build social and political "empowerment" by blacks to combat the problems of continued toxic exposures. According to the commission's Charles Lee, "Unequivocally, minority communities are the communities most at risk to environmental pollution." These communities face exposure to lead-based paint in low-income and public housing, as well as lead smelters and other commercial waste facilities. "There is lead poisoning of children in urban areas - with an estimated 5 5 percent of the victims being Airican-Americans," says Lee. Sulalman Mahdi, regional director of the Center ior Environment, Commerce, and Energy in .Atlanta, states that there i s a solid "relationship between our ireedom struggle" and battling environmental ~ b u s e subjected on African-Americans, what he terms, "environmental genocide." Thereiore, "our work inLolves educating the black community Jrolind the whole question of the environment. I am panicuhrly interested in bridging the civil rights movement \\ 0th the environmental justice movement." "Minority communities are most at risk to env ironmentaI poI I ution." Benjamin Hooks, executive director oi the \ . i i m 31 Association for the Advancement o i Co!r>:ed People (NAACP), has repeated the alarm on - e l er.11 -Ieiels irom the need ior awareness Io d ~ ) I ~ ~ F I I J ~ ltnk to cycles of,crime in the inner citivs. In the .April 1991 edition ot' The Crisis. the i ~ f y ~ J(I orqar. o i the NAACP, Hooks writes: ' ' E n ~ i r o ~ : - - * ~ - t . i i concerns embrace a broader range (than worrying about trees, rivers, and the snail darter by those with greater leisure and iewer economic worries). And there are environmental concerns that have a direct bearing on the quality of life for black Americans. "One environmental concern of great import to black Americans is the poisoning of children from ingestion of lead, primarily through paint. Many older dwellings in central cities, especially the older cities of the Northeast and Midwest, are rife with lead paint, which children sometimes chew on or flake off the walls and eat. A 1988 study showed that black children living in cities faced lead poisoning risks approaching the 50 percent level. "Low levels of lead cause reductions in IQ, attention-span deficits, reading and learning disabilities, and behavior problems. It has been speculated that brain damage stemming from lead poisoning may lead to cycles of crime and alienation among inner- .city residents " The title and theme of the issue i s "The Impact of Environmental Racism on the Black Community," no small message and one certain to gain recognition. POLITICAL FRONT The campaign for empowerment is active on the political front as well. The National Urban League (NUL), along with other major minority organi~ations, is lobbying Congress to enact the Lead-Based Paint Hazard Abatement Act of 1991. In a recent letter to Congressman Benjamin Cardin (0-Md.), who has introduced the bill, NUL'SRoben McAlpine states, "We are extremely concerned about the problems of lead poisoning from deteriorating lead-based paint which is commonly found in low-income housing. A significant percentage o i the children affected by this disease are African- American . . . The Lead-Based Paint Abatement Act of 1991 proposes to accelerate the removal of paint by creating a financial mechanism which will not increase the federal deficit. "Twenty years ago, Congress established a national mandate to wipe out lead paint poisonin3 However, the neurological damage caused by leadbased paint is still a threat to the future of both our children and our nation. The time has come to address this problem, and the National Urban League strongly commends your leadership in doing so." Congress and state legislatures are also being made aware of minority concerns about the HUD Dud During the 1980s. Secretary Samuel Pierce's HUD had little interest in issues relating to leadbased paint detection and hazard abatement procedures and did not act unless specifically directed by the courts or by Congress. For example, in the case of Ashfon v . Pierce, public housing tenants in the District of Columbia were successful in challenging the adequacy oi HUD's lead-based paint regulations and as a result HUD was required by court order to propose a leadbased paint rule for public housing. In 1987, Secretary Pierce's HUD spent over $ 1 million to participate in a commercial trade show in the Soviet Union. This subcommittee investigated that activity and issued a report entitled " H U D Goes to the Moscow Trade Show: Misguided. Mismanaged, and Misspent." The report iound that HUD's costly and misguided underwriting o i this commercial venture was iunded in large part from HUD's Research and Development Account. Congress had intended that these monies be used to develop saie, reliable, and cost-effective methods for testing and abating lead-based paint, radon, and asbestos in housing. - Representative Tom Lantos ~O-Calii.) environment. How they act w i l l be J m'itter oi record - a record these groups will monitor ,ind respond to. Their campaign to achieve " e m p m e r ment" may be likened to a genie now out o i :he bonI e." Athough the lead-based paint concern remains a n environmental public health problem Jiiecfinq a l l Americans, the social, political, and perh,ips I e y ~ l impacts that this genie will have can no longer be \\.;shed away. The social problems that could result :ram Jn increased public awareness will probJblk 40 hetond the inner city, according to Jenniier L l ' i l l l j . .I ; :.:J:or involved in the New Orleans public h o ~ , ~ c'y,?*id litigation. "We get new cases a11 the time .ind '.,.id n private housing is becoming more prom:wnI -,nce more middle-class people are becomtne ab\.ire I A II Until recently in New Orleans, oniv c hlldren on -welfaie were screened automaticail\ : ) ~ r t ' 7 1 ) - parents of middle-class kids are seekinq : h i \ !11f I,I screening. I think we'll see many m o r e \ U I \ middle-class people who have unwiiii.nglb !\I ,t.ihI houses in which their children got poisowd specific, and critics o i the report have said that Con- Environmental Racism? Up north, in the middle of America's biggest city - New York - Peggy Shephard has been challenging environmental racism as a leader o i West Harlem Environmental Action (WHE ACT). Obnoxious, "exploitive" facilities placed in her area in recent years, she notes, have included a huge sewage treatment plant, a "marine transfer station" for garbage, and yet another bus storage depot. "We organized around a series of issues that turned out to be a l l environmental in nature." WHE ACT has "been networking with organizations around" New York City and iound that what has happened to West Harlem i s typical oi what has occurred to other Airican-American and Hispanic neighborhoods. - The Crisis April 1991 gress, w h i c h consistently has avoided issues connected to asbestos litigation, is not likely to take up the responsibility. However, legislative and regulatory mechanisms now are being introduced to help avoid this with regard to the lead hazard. Some examples: At the iederal level, HUD has issued lead-based paint interim guidelines, as has W,which detail the engineering and work practice protocols to minimize exposure to lead and recommend protective work clothing and equipment. The rules require public housing authorities to randomly test all HUD housing for lead hazards iound in family structures Iiuilt beiore 1978. The agency also issued a plan for lead abatement in private homes. On February 2 1, 1991, the Environmental Protection Agency released its comprehensive strategy to reduce lead exposures, with a n emphasis on children. This includes lead-based paint, urban soil and dust, drinking water, battery recycling, and air Willis also believes there may be an additional quality. The agency is also considering regulations trend in lead litigation: "I expect day-care class that would limit or ban current uses o f lead when actions to rise because kids are less at risk i n they present an unreasonable risk, and screening elementary school than earlier in life when they're new uses o i lead. crawling and putting their hands into their mouth Tne Lead Exposure Reduction Act o i 1991, cur- during the preschool years." rently under consideration by the Senate Environ- Then there is the segment of society that removes ment and Public Works Committee, would impose lead from buildings, many of whom are contractors restrictions on new and ongoing uses oi lead and who have removed asbestos from the nation's would direct iederal agencies to overcome barious facilities. Improper removal o i either asbestos or technical obstacles to lead paint abatement. Some or' lead places these workers at increased risk them- the limits on current lead uses include lead-acid selves. Raymond McQueen, the National Asbestos battery recycling; banning lead in gasoline. printing Council's director o i training for asbestos and lead ink, packaging, and canned food solder: and restrict- abatement, believes that property damage suits will ing the use of lead in paint, p l u m b i n g , and increase and owners will worry more about elevated blood lead levels in those removing the lead. pesticides. The amendments to the Lead Poisoning Preven- "This will drive those owners to seek cost recovery tion Act. introduced in the Senate in February 199 1 , in order to afiord proper professional removals." would expand the Centers ior Disease Control lead But with predictions of increased lead litigation, I the question i s whether there are alternatives to a courtroom bottleneck. " W e a r e attempting to put t h e risks in proper perspective." REDUCING A POTENTIAL LITIGATION BACKLOG The asbestos litigation backlog has become such a crisis, said a panel of federal judges appointed by poisoning prevention program to increase the n u m - Supreme Court Chief JusticeWilliam Rehnquist, that ber o i children screened for lead poisoning. Among Congress should consider "a national legislative other elements, the bill would provide J rundinq scheme" to assist in getting compensation to asbes- increase lo 5 3 j million in 1992 from S 1 5 mill,on tos disease victims and affected property owners requested in the President's budget. beiore the funds to do so run out - and beiore large The Residential Lead Abatement Tax C r t d i r A c t . amounts of attorneys' iees take their toll. The six- Introduced this past March, w o u l d .imenri :he member p;rnel's recommendations, however, are not Internal Revenue Code to give tax credits in ?')me Amanda Roseberry, left, and her sister Julianne ' i r e shown here i n 1986, the yeur they had fo vacate their home aiter high levels o i lead were r b u n d on the house's walls - and i n their blood. and apartment building owners ior the removal o i lead paint. The credit would be equal to the ledd abatement expenses paid by the taxpayer. The Lead Contamination Control Act o f 1991 would greatly expand governmental control ober lead eradication and would hasten its elimination from drinking water, schools, and homes. The bill would require that the EPA develop lead abatement a n d inspection standards; require that homes dnd apartments be tested ior lead before real estate transactions; establish a program to train and c e n i i v lead inspectors and removal workers; and promote blood lead screening ior young children bv increasing federal funding to $40 million annuallv. Ed Corman, counsel for the United Brotherhood oi Carpenters, a union composed o i 600,000 memherr working in related construction trades, says that his association i s a proponent o i lead reduction legislation as a n avenue to avoid a barrage oi litigation and promote much-needed lead screening among exposed workers and children. "The Jsbes:oi manuiacturers missed an oppocunity to set up longterm medical surveillance. We don't think i t sene5 our members to have lawyers iight over [ h e i r compensarory recoveries. As a society, i % e must think about w a y s to more intelligentlv aIloc<ire limited resources for siich recoveries. " SO, i n ihe case oi lead, we would l i k e to >?e proposals irom the lead products manuiacturers 3nd oihers as to a more equitable solution !or :hose suiiering from long-term occupational le;ld exposure and disease." 4 similar view i s reilected by the EPA. Resina Bushong, acting chief of the Government Liaison Br~nchC. lffice of Toxic Substances at EPA, etplains, "lead hazards have been and continue to receive rnaior attention from the EPA and much I S heing done by the agency without a lot oi publicitv. The ~ g e n c yrealizes that the lead hazard i s a !pry corn- pie*. problem and that people need cuid3nce. Lt'e h J v e set our policies to try to get accur3:e rnrormz- :ion out and develop oroper traininq ior :he \\ark iorce. rather than allowing events and f e z i s IOariLe the system. " A s the science continues to come in t h d [ i s necessary to design and implement Ionq-ternl Jbatement methods and regulations tor le;id i n 311 mediums, a process nearing completion. '.\e \ \ i l l nursue the problem i n an organized. st.n.;':-~le -;,inner. We are attempting to put the r i G i s in orooer :xrsDective and to avoid creating public w n i i .ind oLerreaction. We should make sure that our (1c:ions .ire driven by well-balanced health perspec:iLes ' The f a c t is, \vith a seemingly lirniflek< ~1oo101 :mientiat plaintiiis and a mvriad ot js-\er-uri*.no\~n \ O C I J I rmpacts caused by the lead Doisoninq 0 1 oLr clti-ens, the nation's courts, Congress. ti-'\ .ind :*#e Ie,ad n;anufacturing industw \vi11 h;\e :o :~i,i0..ei\ .I::erltion to both legislative and I e G j l \ I ,. ( i n ) ' I ihe problem. _I