Wisconsin’s Highest Court Permits Mentally Disabled Boy to Sue Multiple Lead Paint Pigment ManufacturersJul 17, 2005 | www.newsinferno.com
This type of litigation approach has been used with respect to other types of toxic agents and defective medications when a few companies were responsible for all or most of the product or substance involved.
Probably the most famous case where this approach was used was in the massive litigation arising out of the delayed effects of the drug DES (Diethylstilbestrol). This synthetic estrogen, manufactured by a number of pharmaceutical companies between the 1940s and 1970s, was designed to prevent miscarriages.
Unfortunately, the drug has had a devastating effect on the female offspring of mothers who took DES. Cancer, infertility, and other permanent injuries have been linked to DES.
When it came time to sue, however, most of the injured women had no idea which of the drug makers produced the actual pills they or their mothers took decades before.
The courts allowed the injured women to sue all of the manufacturers of DES on the theory that, together, the companies had caused all of the injuries. The concept known as “enterprise liability” permitted the courts to allocate fault according to the “market share” each company enjoyed. Thus, the largest manufacturers of DES paid the highest proportions of the damages.
In a similar approach, for the past six years, the state of Rhode Island has aggressively pursued DuPont Co., and six other companies that formerly manufactured lead pigment paint, for their role in creating a public crisis involving an estimated 36,000 children with unacceptably high levels of the metal.
In 2002, a trial involving the same defendants resulted in a hung jury. The case is presently scheduled to go to trial for a second time in about three months. Besides DuPont Co., the state is suing Con Agra Inc., Atlantic Richfield Co., Millennium Holdings LLC, NL Industries Inc., Sherwin Williams Co., and American Cyanamid Co.
Only two weeks ago, DuPont broke ranks with its codefendants and agreed to pay $12.5 million to several charities in order to buy its peace in the case. While specifically stating that this figure did not represent a settlement, DuPont will make donations to the Children’s Health Forum, Brown University School of Medicine, or the Dana-Farber Brigham and Women’s Cancer Center. More than $11 million will go toward education, compliance, and abatement of contaminated homes in Rhode Island.
The remaining defendants have so far been unwilling to settle the claims made by the state. Since Rhode Island became the first government body to bring this type of lawsuit, several other cities have commenced similar actions.
The Wisconsin decision has now paved the way for those who have suffered the type of devastating mental impairment associated with exposure to lead based paint that was used as far back as the early 1900s.
The Wisconsin defendants who will be targeted under this “risk contribution theory” include Sherwin-Williams Co., ConAgra Grocery Products Co., American Cyanamid Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries Inc., and SCM Chemicals Inc.
Only yesterday, in a related story, a new study, published in the July issue of the journal Environmental Health Perspective, seems to remove any speculation that lead is capable of doing enormous harm to children regardless of how low the exposure may be.
Summing up the essential conclusion of the study, lead author Dr. Bruce Lanphear, director of the Children’s Environmental Health Center at Cincinnati Children’s Hospital Medical Center, stated: "The study indicates there is no threshold for the adverse consequences of children's exposure to lead. We found evidence of intellectual impairments among children with blood lead levels below 10 micrograms per deciliter, the level currently considered acceptable by the Centers for Disease Control and Prevention. The study indicates that the action level set by the CDC isn't adequate to protect children."
The study analyzed data from 1,333 children, with a wide range of blood lead levels, from around the world from birth or infancy until they were 5 to 10 years old.
The findings showed that even blood lead levels below 7.5 micrograms per deciliter are associated with significant intellectual impairment. In fact, the study found that intellectual impairments caused by low levels of exposure are proportionally greater than those caused by higher exposure levels.
Clearly, the goal must be complete prevention and not merely limiting the level of childhood exposure to lead. Dr. Lanphear stated that this study and other available data are ample proof that the goal should be “to eliminate childhood lead exposure by banning all nonessential uses of lead and further reducing the allowable levels of lead in air emissions, house dust, soil, water and consumer products."