David Rosner: Lead paint case in which he testified could go to jury next week





The state's historic lead paint lawsuit may go to the six-person jury next week, and if it does, the jurors will be asked to believe such widely varying images of the four corporations being sued that it may sound like two trials were held.

The state rested its case on Thursday morning. The defendants did the same minutes later, without calling a single witness.

The diverging views after the three-month trial came in legal arguments made by the defendants' lawyers Thursday and Friday as they asked Superior Court Judge Michael A. Silverstein to dismiss the case rather than send it to the jury.

Basically, the lawyers argued that the state hadn't even established that the four companies sold any lead-based paints in Rhode Island.

Michael Nilan, arguing for Millennium Holdings LLC, successor to Glidden Paints, put it this way: "The bottom line, your honor, is, to quote Gertrude Stein, 'There is no there there.' There is no evidence Millennium through Glidden substantially contributed to a public nuisance, if there is found to be a public nuisance. The state has not met its burden of proof. The state has not even made a prima facie case."

Joseph Cavanaugh, an attorney for Sherwin Williams, added: "What this case represents in a number of ways is a failure of proof."

Cavanaugh argued that the only evidence the state presented against his client was the fact that it had an unspecified number of stores in the state.

Cavanaugh said of all four defendants, "There is an allegation that sometime in the last 100 years they sold a product that contained some lead. Now, today the jury is going to decide whether they subtantially contributed to a public nuisance. . . But how, truthfully, with respect to each defendant, can one be expected to do anything but guess here, because there is a failure of proof."

The possiblity of any punitive damages against the defendants should be removed immediately, Cavanaugh argued, because they did nothing wrong. "Where is the wicked conduct?"

Three lawyers for the state responded sharply, at times even emotionally, that the four defendants were the giants of the lead paint industry and all four continued to make the paints even though it was widely known that they were literally killing people.

"It has been established that there is somewhere in the order of 37,000 children harmed by lead paint [in Rhode Island]," said assistant state attorney Neil F.X. Kelly. "That is a significant amount of children. If these companies had stopped when they learned that death could ensue, we would not be standing here."

Fidelma Fitzpatrick, representing the state, went down the list -- Sherwin Williams, NL Industries, Millennium and Atlantic Richfield (successor to Anaconda Copper) and said state witnesses had described each as a major player in national lead pigment sales and as doing business in Rhode Island.

One witness, historian David Rosner, testified the defendants produced huge quantities of lead pigments and marketed them all over the country -- despite knowing they are toxic, Fitzpatrick said.

And not once did the defendants issue any warnings about their paints.

What was worse, Fitzpatrick said, is that one company, Glidden, began marketing nonlead paints and advertising it as nontoxic.

In fact, all the defendants knew how to make nontoxic paints and did so. But Fitzpatrick said they also made and sold vast quantities of their toxic paints.

Instead of introducing volumes of evidence about each company, Fitzpatrick said the state sought to save time by having Rosner testify about the thousands of documents he has read about each company. With no witnesses presented by the companies, she said Rosner's testimony is "uncontroverted" evidence of the companies' guilt.

As far back as 1900, Fitzpatrick said, Sherwin Willams company documents acknowledged that white lead is a deadly, cumulative poison. Four years later, the company started making lead pigments and continued to do so for seven decades.

In 1921, Fitzpatrick said a doctor at Boston Children's Hospital published an article saying children were dying.

"Horrific circumstances," Fitzpatrick said. "This was horrifying. And what does Sherwin Williams decide to do -- it decides to try to get a little more lead out there [through a special promotional campaign.] It doubled its production."

"Throughout this history of knowledge, promotion and sales, there is no evidence that Sherwin Williams ever warned anyone," Fitzpatrick said. "Not parents, not homeowners, not landowners, not tenants. They didn't warn anyone. Let's get beyond whether it was lawful or unlawful. It was the right thing to do. You don't sell a product that will harm children."

Silverstein directed the jury to return Feb. 6, the day after the Super Bowl. In the meantime, he is reviewing legal arguments from both sides.



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