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Why lead-paint makers escape fines that cost Big Tobacco billions

Lead has been banned from paint in the U.S. since 1978, but lawyers are still going at it over who should pay to remove the potential health hazard from homes. 

The latest attempt to hold the paint industry liable is coming to a head in a California state court. Lawyers made final arguments on Monday in a 13-year-old lawsuit by a group of California communities against five paint manufacturers: Sherwin Williams, DuPont, ConAgra, LM Industries, and Atlantic Richfield.  

The California cities want between $1 billion and $2 billion for clean-up costs.

Unlike anti-tobacco litigation, where industry executives denied cigarettes were addictive, no one questions the health hazards posed by lead paint.

“Everyone has agreed that lead is bad for you and lead in paint is a public health threat,” says attorney Kenneth McLain, who has represented plaintiffs in class-action lawsuits. 

But while tobacco and asbestos companies have paid out billions of dollars in damages, the paint industry has never been held financially liable for health problems related to its products.

Why not?

One of the problems with suing paint makers, at least so far, has been tying 40-year-old lead paint to them

“Unlike Asbestos,” McClain says, “most people don’t remember the paint that was used. They don’t have any accurate information about what they were exposed to.”

Another obstacle is just who is doing the suing. In asbestos lawsuits, the plaintiffs were people who got cancer, says Elizabeth Burch, a mass torts expert at the University of Georgia School of Law. Sick smokers took on Big Tobacco, and so did state governments, which sued to recover increased healthcare costs. 

But in the case of lead paint, local governments are suing and they’re making a legal argument that lead paint is a “public nuisance,” that it’s like pollution. Burch says “public nuisance” has traditionally applied to problems that infringe on some kind of public right.

“If someone polluted Lake Michigan, for example,” she says, then a state attorney general might sue on the basis of public nuisance. Or, for example, if a saw mill let logs clog up a river and prevented commerce.

But, Burch says, courts have said this theory doesn’t apply to lead paint. “You have concerns from the courts about expanding that public nuisance doctrine,” she says.

Public-nuisance claims against paint companies have failed in seven states. In one of them, Rhode Island, the legislature assigned responsibility for lead-paint remediation to landlords. In some lawsuits, public housing authorities have been held liable.

But so far, the manufacturers have not. 

About the author

Sabri Ben-Achour is a reporter for Marketplace, based in the New York City bureau. He covers Wall Street, finance, and anything New York and money related.

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