Turning lead into asbestos and tobacco: litigation alchemy gone wrong: so far, defendants have enjoyed remarkable success in handling litigation from a variety of plaintiffs alleging variety of harms from lead paint.

• Author: Smith, Scott A.

IN 1999, some prominent members of the mass tort plaintiffs' bar, fresh off conquests of the tobacco and asbestos industries and with war chests in the hundreds of millions of dollars, set their sights on a new target--the former manufacturers of lead paint and lead pigment and their successors-in-interest. Never mind that the lead paint and pigment defendants had never lost or settled a case since the first wave of lawsuits against them began in 1987. To the top plaintiffs' lawyers, the perceived parallels among asbestos, tobacco and lead were irresistible.

Now, nearly five years after the plaintiffs' lawyers' assaults began in earnest and despite their predictions, as well as those of some legal commentators, lead paint and pigment defendants' winning record remains intact. The only two cases to go to trial have ended in a defense verdict and a hung jury split 4-2 in favor of the defense. Dozens of other actions have ended in dismissals and summary judgment rulings on various grounds, and defendants still have yet to settle a case.

What are some of the possible reasons that, at least so far, lead paint and pigment litigation has not been the gold mine anticipated by the plaintiffs' bar? In particular, what are some of the key differences between the lead paint and the asbestos and tobacco litigation? How have those differences culminated in a variety of defense-favorable rulings over the years?

IDENTIFYING THE PLAYERS

Since 1987, when the first action was commenced, a variety of different plaintiffs have asserted a diverse array of claims against the former manufacturers of lead paint and lead pigment. The plaintiffs, the types of actions brought, and the defendants who have been the targets can be summarized as follows:

1. Plaintiffs and Their Actions

   1. Childhood Lead Poisoning

      These are personal injury cases brought on behalf of children with elevated blood lead levels allegedly resulting from their exposure to lead-based paint in their homes or apartments. Most plaintiffs seek recovery for such damages as medical and counseling costs, diminished IQ, diminished cognitive functioning (memory difficulties, etc.), loss of future income potential, and other personal and economic harms. These cases are both individual suits and class actions, and they typically sound in tort, with various theories of alternative liability and conspiracy often thrown in for good measure.

   2. Occupational Exposure

      These are personal injury cases brought on behalf of adults occupationally exposed to lead-based paint, whether as painters, ironworkers (who may sandblast bridges previously painted with lead-based paint), or construction workers. These claims are quite varied in terms of the harm claimed to result from exposure--for instance, hypertension, cardiovascular disease, kidney disease, cancer and many other ailments have been claimed. Tort, alternative liability and conspiracy claims typically are pleaded in these cases.

   3. Governmental

      These are actions brought on behalf of governmental entities, including towns, cities, counties, school corporations or districts, municipal housing authorities and states, for a variety of costs allegedly associated with the presence of lead-based paint. In some cases, governmental plaintiffs have sought recovery for the costs of abating lead-based paint in buildings owned by them. Other cases are much broader and involve claims for abatement of all lead-based paint in public and private buildings, including private dwellings, within the governmental unit in question. Some governmental units also have sought damages to defray the costs of lead inspection, abatement and enforcement programs maintained by them.

      Municipal and governmental plaintiffs have asserted a wide variety of legal theories against lead paint and pigment defendants, including tort, quasi-contract, public and private nuisance, state consumer protection statutes, equitable remedies, and conspiracy.

   4. Medical Monitoring

      These are actions brought by individuals, inevitably on behalf of a putative class of individuals similarly situated, seeking recovery for costs of medical monitoring or screening allegedly made necessary owing to childhood exposure to lead-based paint. These actions, like personal injury cases, typically sound in tort, alternative liability, and conspiracy. A few plaintiffs also have asserted claims based on state lead poisoning prevention statutes.

2. Defendants

   Not surprisingly, plaintiffs have attempted to characterize former manufacturers of lead paint and pigment as a monolithic "lead industry." In reality, defendants are a far more diverse lot. Most of the companies sued as former manufacturers of lead pigment never made the product but are alleged successors-in-interest (even, in some cases, successors to successors) of companies that once manufactured lead pigment more than half a century ago. They include chemical companies, a petrochemicals producer, and a food and agricultural products producer, among others. Most of them (and their successors) never made lead paint.

   Companies sued as former lead paint manufacturers also, in many cases, never produced lead-based paint, and some have been sued simply for failing to warn of the hazards of a product they never made. In some cases, plaintiffs have added entities totally unrelated to the manufacture of lead pigment and lead paint, including lead mining companies, lead smelters, and manufacturers of tetraethyl lead, a former gasoline additive. Trade industries, including the now-bankrupt Lead Industries Association (LIA) and the National Paint and Coatings Association, also have been added to the list of defendants in many cases.

   The diversity of these companies, the widely disparate roles played by each relevant to the manufacture and production of lead paint and pigment, and the different time frames and circumstances regarding each entity's involvement with lead products all lay to rest any suggestion of a single, evil "lead industry" as portrayed by the plaintiffs' bar.

   IT'S NOT ASBESTOS OR TOBACCO

   More than one observer has referred to litigation against former manufacturers of lead pigment and lead paint as "the next tobacco" or "the next asbestos." Superficially at least, there are several similarities. Lead, after all, has been known to be toxic at high doses for more than 2,000 years, and there is no doubt that paint companies willingly mixed and sold paint containing lead pigment for decades during the first half of this century. The LIA sponsored research into the hazards of lead and sought to promote the use of lead in various products, including paint.

   Although lead-based paint was banned by the federal government in 1978, today lead-based paint can be found on the walls, window and door frames, and other interior and exterior surfaces of an estimated 38 million housing units in the United States. Although down from the 1990 estimate of 64 million, (1) the figure is still a sizable one. Federal, state and local governments have extensive statutory and regulatory schemes in place to minimize the risks of childhood lead poisoning and to combat lead-paint hazards. Particularly among low-income urban populations, childhood lead poisoning resulting from poorly maintained apartment buildings remains a public health concern even today, more than 25 years after the federal government banned lead from residential and consumer paints. Indeed, lead paint cases would seem to have something going for them that asbestos and tobacco cases do not--innocent children, not industrial workers (asbestos) or adults who arguably assume the risk of their illnesses (tobacco smokers), are the victims.

   Those superficial similarities, however, clearly have not resulted in a cascade of plaintiffs' verdicts against lead paint and pigment defendants. A closer look at some key differences between lead paint and pigment cases on the one hand, and asbestos and tobacco cases on the other, helps to illustrate why lead paint litigation has not followed the route of asbestos and tobacco cases.

1. Proving Product Identification

   Lead pigment, mostly in the form of white lead carbonate, was used widely by paint manufacturers during the 1920s, 1930s and early 1940s. By the late 1940s and early 1950s, however, most paint manufacturers had phased out the use of white lead carbonate in favor of other pigments, most notably titanium dioxide. By 1955, paint manufacturers voluntarily discontinued the manufacture and sale of all interior residential paint containing more than 1 percent lead, and lead was pulled from exterior paints a few years later. Moreover, many communities banned the sale of lead-based paint in the 1950s, 1960s and 1970s, and ultimately the federal government banned the sale of lead-based paint for consumer or residential purposes in 1978. Accordingly, any interior lead-based paint causing harm to children almost certainly was applied no later than the 1950s, and more likely decades earlier.

   These factors cause most plaintiffs' cases to suffer from problems of product identification. Historical records that might identify the specific manufacturer or seller of lead-based paint found in a plaintiff's residence are rarely found. Sales receipts, invoices or other records identifying the seller have long since been lost, the paint cans themselves were discarded after use, and the painters who applied the paint are either deceased or have no recollection of paint products they applied more than half a century ago.

   Unlike asbestos cases, where electron microscopy or other scientific analysis of asbestos-containing material samples is often used to identify the material's manufacturer, at present there is no comparable scientific method by which the manufacturer of lead paint can be ascertained. Attempts to identify the manufacturer of lead pigment through scientific analysis remain highly controversial and have not yet been accepted by the courts.

   As a...