Air Date: Week of November 1, 2002

The state of Rhode Island contended in a landmark court case that lead paint still in buildings from decades ago is a public nuisance. But the jury couldn't agree on this question and a deadlock led to a mistrial. Host Steve Curwood talks with the Providence Journal's environment writer Peter Lord about the case.

Transcript

CURWOOD: It’s Living on Earth. I’m Steve Curwood. According to the Centers for Disease Control in Atlanta, almost 900,000 children in the U.S. between the ages of one and five have elevated levels of lead in their blood. Exposure to lead can cause neurological and behavioral problems that have been linked to increased school dropout and crime rates. And much of that exposure can be traced to deteriorating housing in which children ingest lead dust.

Lead paint was banned in the U.S. in 1978, but now the state of Rhode Island has taken paint makers to court. The case could set national precedent on corporate responsibility, the same way tobacco litigation did. But the first phase of the suit has ended in a mistrial. Peter Lord, an environmental writer with the The Providence Journal, is covering the trial. Peter, what is Rhode Island seeking in this massive suit?

LORD: Well, they wanted to get the paint companies to help pay for cleaning up the lead paint that was used two generations ago. Attorney General Sheldon Whitehouse announced when he filed this lawsuit two years ago, he said “Everyone is paying for this, except the people who created the problem. The federal government is paying. The local governments are paying. Landlords are paying.” So he filed a suit against the paint companies. He tried a new strategy. They’ve been sued dozens of other times, but he filed a public nuisance suit which is different, and he thought it might be easier to prove. And basically, a jury was asked to answer one question – “Does the presence of lead paint in paint and coatings on houses, schools, hospitals and other public and private buildings throughout the state of Rhode Island constitute a public nuisance?” A simple yes or no.

And he had arrayed a team of lawyers to try this case that was impressive. He had the Ness, Motley law firm that won the tobacco law suits. He had Len Decof who is kind of the dean of Rhode Island trial lawyers, and he had his own assistant attorney generals. So, it was an impressive array of arguments and talent that brought this case forward in this way and captured national attention.

CURWOOD: So, this trial lasted what, some seven weeks? The jury was out for four days of deliberation and then came back and told the judge they couldn’t reach a verdict. Why did this case end in a mistrial, in a deadlock?

LORD: Well, we have some information about that. We talked to the jury foreman, and the jurors themselves talked briefly with the lawyers. The jury foreman said the biggest issue to the opponents was the state’s argument was that there was lead paint in houses, schools, hospitals, and other public and private buildings that was creating a public nuisance.

But the very last thing the jury heard before they went into deliberations was the defense submit paperwork in which the state confessed that it couldn’t prove that any single kid was poisoned in a hospital, school, or public building. That was the last thing they heard.

And the state says that was a trick question. Because the way screening is done, the state never checks hospitals, schools or public buildings. So they sort of got backed into a corner. They were trying to argue it’s a public nuisance. They said “We’ve got 35,000 poisoned kids, 30,000 high risk houses, it’s a no-brainer. It’s a public nuisance. It should have taken the jury two hours to find that.” But the more days the deliberations went on, the more obvious it was that there was a problem. And, in the end, there were four jurors for the paint companies and only two for the state.

CURWOOD: What happens now, Peter?

LORD: Each site has ten days to file briefs asking the judge to, basically, come out with a summary judgment, to rule as a matter of law that one side or another was correct. That’s a long shot. Judges rarely do that. So, also what’s going on is the state is preparing to start another trial. They’re going to ask the judge to let them start this as soon as possible.

CURWOOD: Well, if the state couldn’t get a jury to go along with them in this most recent trial, why would the state expect that another jury would have a different outcome?

LORD: Well, that’s the interesting thing. That’s why they went and talked to the jurors, to figure out what impressions struck them and what didn’t. So they’re going to reconfigure their trial. I’m quite sure it’s not going to be the same as the case they presented this time. I don’t know what it’s going to look like though, because there were a lot of legal limitations on the evidence they could present.

But one thing that was obvious was the kids weren’t part of this trial at all. I mean, the victims are children, and yet this was a trial of experts; there were doctors, and scientists, and economists, and chemists, and there were no mothers, no children. There wasn’t really the human side of this, which is so much more compelling than the chemical side.

CURWOOD: Peter Lord is an environment writer for The Providence Journal. Thanks for filling us in Peter.

LORD: You’re welcome.