U.S. Chamber counterattacks lead - paint suit by RI AG 

Peter B Lord / Providence Journal (RI) 29mar01

U.S. Chamber counterattacks lead - paint suit In response to Atty. Gen. Sheldon Whitehouse's lawsuit against the industry, the state and City of Providence are being asked to provide 50 years of records that have anything to do with lead poisoning.

PROVIDENCE -- An arm of the U.S. Chamber of Commerce has swamped the Providence city government and a half-dozen state agencies with a massive public records request aimed at showing that the state and local governments are liable for the thousands of Rhode Island children poisoned each year by ingesting lead-paint particles.

The 64-item request seeks virtually every record of lead poisoning, every policy decision, every lead test result, all medical records of poisoned children, all cleanup notices, even all the records about records -- dating back 50 years.

Chamber officials said they filed the requests in response to a lawsuit Atty. Gen. Sheldon Whitehouse filed 17 months ago against many of the nation's largest paint companies, seeking damages because they manufactured the pigments that now poison children across the country.

James Wootton, president of the Chamber's Institute for Legal Reform, said yesterday the lawsuit is frivolous and that Rhode Island officials should be aware that in pressing the case, they may reveal many mistakes and liabilities created by public officials in dealing with the lead problem.

"We've got cities that think there is a shortcut to cleaning up their lead problem by filing suits against an industry that hasn't sold the product for 25 years," Wootton said. "We think it's outrageous that instead of doing what they are supposed to do -- cleaning up their housing stock -- they're being talked into contingency-fee lawsuits prompted by lawyers."

Whitehouse said yesterday the Chamber was acting as "shills for the paint industry" and the records request showed how fearful the industry is of seeing his lawsuit proceed. (The paint industry has moved to have Whitehouse's lawsuit thrown out and a decision by Superior Court Judge Michael A. Silverstein is expected any day.)

"Putting up all this bother before [Silverstein] has even decided whether this case can go forward shows they don't have much confidence," Whitehouse said. "They are acting like losers before it even goes forward."

"There is a nearly comical quality to the industry flacks purporting to investigate whether the innocent Rhode Island taxpayers have done a good enough job cleaning up the mess the industry made," Whitehouse added. "It's like an arsonist checking up on how the fire department did in putting out his fire."

Chamber officials said this is only the second time they've used the records request tactic. They filed a similar records request last summer against the City of Milwaukee when it was considering filing its own suit against the paint companies. A Chamber spokeswoman, Linda Rozett, said the tactic caused the city to back down.

Wootten said it didn't necessarily back down, but so far the city has held off on pressing its suit and he hoped it wouldn't go further.

But Linda Burke, a solicitor for Milwaukee, said both Chamber officials are wrong. The records request, she said, was an effort to intimidate the city so it wouldn't sue, and it failed. The city plans to sue anyway, she said.

The Chamber submitted 64 questions to 10 city departments and when they didn't respond quickly enough after six weeks, she said, it sued them.

"That was lousy," Burke said. "It was nothing more than political pressure. It came as our council was considering filing the lawsuit. And it was a crappy thing to do."

What's more, she believes the tactic backfired.

The information was gathered, she said. The city's Health Department alone collected 85 boxes of records.

"We assembled it. It was a monumental job," Burke said. "And they never came and looked at it."

Ultimately, the Chamber's lawsuit was dismissed, she said, and it was ordered to pay the city's legal costs.

Meanwhile, she said, the City Council voted to hire outside legal counsel and proceed with the lawsuit.

"We felt the Chamber was trying to intimidate us into not approving the lawsuit," Burke said. "It did not deter us. In fact, we're going to need a lot of these records ourselves, so it actually helped us."

Wootten said the Chamber wants the records from Milwaukee and Rhode Island because it wants to see where all the federal money provided for lead abatement has been spent.

He filed requests with seven departments and offices in Providence, as well as the state Department of Health, the Department of Environmental Management, the attorney general's office, the Department of Human Services and the Rhode Island Housing and Mortgage Finance Corp.

(Providence has talked about suing the paint companies, but hasn't filed a suit so far.)

The defendants in Whitehouse's suit are the Lead Industries Association, American Cyanimid Co., Atlantic Richfield Co., E.I. du Pont de Nemours and Co., the O'Brien Corp., Glidden Co., NL Industries, SCM Chemicals and the Sherwin Williams Co.

Tiny amounts of lead can cause brain damage, learning difficulties and behavioral problems for children. The damage is worse when the poisoning occurs with toddlers whose brains are still developing, and it's more frequent at that age because small children tend to play on the ground and floors and put things into their mouths.

Experts believe the primary source of lead poisoning comes from paint in older houses -- especially from doors, and walls and windows that aren't properly maintained and from soils where the lead has collected.

Lead was considered an important additive for quality paints. But after increasing evidence about the dangers it creates, the industry stopped using it on toys and cribs. Finally, the government banned lead on houses in 1978.

The lead industry insists it acted legally and responsibly, taking lead off the market as new evidence pointed to problems. It has won every lawsuit filed against the industry.

Whitehouse and others claim the industry knew for years that lead was dangerous, but continued selling it.

Lead levels have decreased around the country, but in Rhode Island last year nearly 3,000 additional children were poisoned. Just last week state Health Director Patricia Nolan warned that average childhood blood levels in Rhode Island remain 2.5 times the national average, largely because of the state's older, urban neighborhoods.

Wootten said the records search is his idea. (A spokesman for the paint industry said he didn't know this records initiative was under way.)

"The positive point here is we believe we need to clean this problem up and we'd like to work towards a more political solution," Wootten said. "We'd even support spending more money, if they'd just drop these lawsuits."

Whitehouse declined to say how he plans to respond to the records requests, saying that would be giving away strategy to the other side.

Wootten didn't mind revealing his plans. "If the deadline passes and they are not forthcoming, they can expect to be sued."

Read the lawsuit Atty. Gen. Sheldon Whitehouse filed against lead-paint producers and learn more about lead poisoning at:

http://www.projo.com/extra/lead/