Academic journal article Defense Counsel Journal

Turning Lead into Asbestos and Tobacco: Litigation Alchemy Gone Wrong

Academic journal article Defense Counsel Journal

Turning Lead into Asbestos and Tobacco: Litigation Alchemy Gone Wrong

Article excerpt

So far, defendants have enjoyed remarkable success in handling litigation from a variety of plaintiffs alleging variety of harms from lead paint

IN 1999, some prominent members of the mass tort plaintiffs' bar, fresh off conquests of the tobacco and asbestos industries and with war chests in the hundreds of millions of dollars, set their sights on a new target-the former manufacturers of lead paint and lead pigment and their successors-in-interest. Never mind that the lead paint and pigment defendants had never lost or settled a case since the first wave of lawsuits against them began in 1987. To the top plaintiffs' lawyers, the perceived parallels among asbestos, tobacco and lead were irresistible.

Now, nearly five years after the plaintiffs' lawyers' assaults began in earnest and despite their predictions, as well as those of some legal commentators, lead paint and pigment defendants' winning record remains intact. The only two cases to go to trial have ended in a defense verdict and a hung jury split 4-2 in favor of the defense. Dozens of other actions have ended in dismissals and summary judgment rulings on various grounds, and defendants still have yet to settle a case.

What are some of the possible reasons that, at least so far, lead paint and pigment litigation has not been the gold mine anticipated by the plaintiffs' bar? In particular, what are some of the key differences between the lead paint and the asbestos and tobacco litigation? How have those differences culminated in a variety of defensefavorable rulings over the years?

IDENTIFYING THE PLAYERS

Since 1987, when the first action was commenced, a variety of different plaintiffs have asserted a diverse array of claims against the former manufacturers of lead paint and lead pigment. The plaintiffs, the types of actions brought, and the defendants who have been the targets can be summarized as follows:

A. Plaintiffs and Their Actions

1. Childhood Lead Poisoning

These are personal injury cases brought on behalf of children with elevated blood lead levels allegedly resulting from their exposure to lead-based paint in their homes or apartments. Most plaintiffs seek recovery for such damages as medical and counseling costs, diminished IQ, diminished cognitive functioning (memory difficulties, etc.), loss of future income potential, and other personal and economic harms. These cases are both individual suits and class actions, and they typically sound in tort, with various theories of alternative liability and conspiracy often thrown in for good measure.

2. Occupational Exposure

These are personal injury cases brought on behalf of adults occupationally exposed to lead-based paint, whether as painters, ironworkers (who may sandblast bridges previously painted with lead-based paint), or construction workers. These claims are quite varied in terms of the harm claimed to result from exposure-for instance, hypertension, cardiovascular disease, kidney disease, cancer and many other ailments have been claimed. Tort, alternative liability and conspiracy claims typically are pleaded in these cases.

3. Governmental

These are actions brought on behalf of governmental entities, including towns, cities, counties, school corporations or districts, municipal housing authorities and states, for a variety of costs allegedly associated with the presence of lead-based paint. In some cases, governmental plaintiffs have sought recovery for the costs of abating lead-based paint in buildings owned by them. Other cases are much broader and involve claims for abatement of all lead-based paint in public and private buildings, including private dwellings, within the governmental unit in question. Some governmental units also have sought damages to defray the costs of lead inspection, abatement and enforcement programs maintained by them.

Municipal and governmental plaintiffs have asserted a wide variety of legal theories against lead paint and pigment defendants, including tort, quasi-contract, public and private nuisance, state consumer protection statutes, equitable remedies, and conspiracy. …

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