MILWAUKEE - A Wisconsin appeals court ruled that the city of Milwaukee could proceed to trial with a lead-paint lawsuit filed in 2001 against NL Industries Inc. and Mautz Paint Co., now owned by The Sherwin-Williams Co. The suit, which was dismissed by a lower court in 2003, contends that the companies created a public nuisance by selling lead-based paint and pigments.

The city is seeking $85 million from the two companies to cover the cost of abating old lead paint in roughly 41,000 houses in Milwaukee neighborhoods. In the suit, the city contends that roughly 26% of the children in the neighborhoods have elevated lead levels in their blood.

In their defense, Mautz Paint and NL Industries have said the city cannot prove that any of their products created or contributed to a public nuisance. Milwaukee County Judge Timothy Dugan agreed and dismissed the city's lawsuit in July 2003. The decision continued a series of legal victories for companies in similar suits across the country.

Tom Graves, NPCA vice president and general counsel, said a jury in the case - if the lawsuit gets to that point - would no doubt "reject the city's fishing expedition as out of step with reality." He said jurors would find it difficult to believe that a small regional paint company such as Mautz had "conspired" with a major supplier of lead-based pigments to create a public nuisance in Milwaukee, as alleged in the city's lawsuit. Graves said it was his opinion that a jury would see the lawsuit as "an attempt to find deeper pockets" than the parties actually responsible - landlords and the city itself.