Published reports said lawsuits filed by state attorneys general could make similar arguments to those used in cases against asbestos and tobacco companies — that manufacturers knew their product was dangerous but sold it anyway.
While no suits have been filed, at least one state attorney general, Jeff Pine of Rhode Island, has said he would file a suit if it was determined a solid case could be made and if a sizeable penalty could result. In a recent news report, Pine was quoted as saying an alliance of state attorneys general could prove to be a formidable force in pursuing a lead-paint case. “There’s a lot of legal authority on our side,” he said.
The coatings industry should closely monitor the threat of lead-paint lawsuits, said the National Paint & Coatings Association (NPCA)’s top legal expert. But Thomas J. Graves, NPCA general counsel, said lawsuits involving lead paint in the past have been aimed at suppliers of lead pigments rather than paint manufacturers. Still, he said aggressive state attorneys general could expand the scope of such cases and seek to include coatings manufacturers as defendants.
Graves also pointed out one key difference between lead-based paint and tobacco: unlike the tobacco companies, paint manufacturers long ago discontinued the sale of lead-containing products to general consumers when it became clear that lead posed a health hazard. And the coatings industry also has taken an active role in seeking to address hazards posed by lead-based paint, Graves said, citing the NPCA’s leadership role in the launch of the CLEARCorps program. The program is designed to reduce lead exposure through education, lead testing and lead cleanup of older homes in low-income urban areas.
Advocates of the filing of lead-paint lawsuits, however, have been encouraged by recent procedural rulings in cases pending in state courts in New York and Louisiana, and by the success of the tobacco litigation.
In the New York case, a judge ruled that lead-paint suppliers can be subject to liability under the so-called “market-share” collective liability theory. The theory holds that a manufacturer’s responsibility for injury caused by a product can be based on its share of the market for the product. The theory is used as a last resort when alleged suppliers of such products cannot be clearly identified.
The ruling has kept alive a suit filed against seven companies — a combination of lead-pigment suppliers and paint manufacturers. Also named as a defendant is the Lead Industries Association, a trade group.
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