Lead Paint Manufacturers Held Accountable: At Least Part Of The Way
Judge Says R.I. Cannot Seek Punitive Damages in Lead Paint Case
In the eastern states, especially the northeastern states, lead paint is a major problem. The headache and cost of remediating lead paint has fallen to landlords, many of whom bought the dwellings in question without diclosure. What is strange is that it is congress that created, and is at fault for the lead paint problem as much as the lead paint manufacturers. Lead in paint was identified as harmful to people (especially children)and toxic to the environment in 1898. Up until the lead paint removal laws were passed in 1972--80 years after identifying the problem--that congress revered its protectionist stance on lead paint.
As a former landlord that was saddled with the problem after buying a triple-decker in Lynn, Massachusetts, I know the cost of lead paint abatement. My business partner and I spent over $60,000 our of $100,000 financed for building repairs. The effort included replacing all the finished wood work; replacing all the windows, sashes and sills; sanding floors and using chemicals to leach out lead and then covering the floors with an additional substrate before laying vinyl or carpet; removing or completely covering all clapboards and exterior surfaces; testing soils surrounding the structure and abating contaminated ground covering; rebuilding a garage; and completely rebuilding back porches and removing front porches. All of the lead abatement had to be performed by specialized and licensed contractors that tripled the cost of the repairs and disposal costs. The pre-repair inspections alone were outrageously cost prohibitive.
What really smarted most was that federal and state laws would not allow the home owner to go after the lead paint manufacturers, all of whom knowingly sold a product that was a bio-hazard. However, even after abatement efforts were made and completed, landlords could be sued by tenants and buyers (if the dwelling was sold). There was no justice in the lead paint fiasco. Children and adults were being exposed to a bio-hazard that causes brain damage, liver and kidney problems, learning disabilities and chronic health conditions. Economic fallout was everywhere except in regard to the manufacturers: landlords bore the brunt of abatement; states bore the brunt of enforcing very unpopular law; health costs related to lead exposure were born by state and local health programs, especially Medicaid; and law suits related to lead paint added to the already burdened judicial system.
The Rhode Island cases at least hold the manufacturers responsible for the mess they created, but abandons a principle of justice in prviding that no punitive damages are imposed. However, if punitive damages were imposed it might have caused these manufacturers to file bankruptcy, fold their businesses and then the damage done would never be abated.
Now we need other states and congress to act to abate the lead paint problems in a meaningful way that doesn't cost landlords--and eventually tenants that bear the cost in higher rents--a fortune. It would also be nice if we avoided construction industry protectionism in the future so we avoid this type of problem in the future. But history tells us that such will not be the case... anyone remember the UFFI problem?
In the eastern states, especially the northeastern states, lead paint is a major problem. The headache and cost of remediating lead paint has fallen to landlords, many of whom bought the dwellings in question without diclosure. What is strange is that it is congress that created, and is at fault for the lead paint problem as much as the lead paint manufacturers. Lead in paint was identified as harmful to people (especially children)and toxic to the environment in 1898. Up until the lead paint removal laws were passed in 1972--80 years after identifying the problem--that congress revered its protectionist stance on lead paint.
As a former landlord that was saddled with the problem after buying a triple-decker in Lynn, Massachusetts, I know the cost of lead paint abatement. My business partner and I spent over $60,000 our of $100,000 financed for building repairs. The effort included replacing all the finished wood work; replacing all the windows, sashes and sills; sanding floors and using chemicals to leach out lead and then covering the floors with an additional substrate before laying vinyl or carpet; removing or completely covering all clapboards and exterior surfaces; testing soils surrounding the structure and abating contaminated ground covering; rebuilding a garage; and completely rebuilding back porches and removing front porches. All of the lead abatement had to be performed by specialized and licensed contractors that tripled the cost of the repairs and disposal costs. The pre-repair inspections alone were outrageously cost prohibitive.
What really smarted most was that federal and state laws would not allow the home owner to go after the lead paint manufacturers, all of whom knowingly sold a product that was a bio-hazard. However, even after abatement efforts were made and completed, landlords could be sued by tenants and buyers (if the dwelling was sold). There was no justice in the lead paint fiasco. Children and adults were being exposed to a bio-hazard that causes brain damage, liver and kidney problems, learning disabilities and chronic health conditions. Economic fallout was everywhere except in regard to the manufacturers: landlords bore the brunt of abatement; states bore the brunt of enforcing very unpopular law; health costs related to lead exposure were born by state and local health programs, especially Medicaid; and law suits related to lead paint added to the already burdened judicial system.
The Rhode Island cases at least hold the manufacturers responsible for the mess they created, but abandons a principle of justice in prviding that no punitive damages are imposed. However, if punitive damages were imposed it might have caused these manufacturers to file bankruptcy, fold their businesses and then the damage done would never be abated.
A judge ruled Tuesday that the state cannot seek punitive damages against three lead paint manufacturers found liable for creating a public nuisance in Rhode Island.
The companies -- Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC -- still must pay to clean up the mess caused by lead paint, which could amount to billions of dollars.
Superior Court Judge Michael Silverstein will decide later exactly what the companies must do to fix the problems caused by lead paint, which was banned in the United States in 1978 because it can cause brain damage and other health problems in children.
A jury last week held the three companies responsible for lead paint present in thousands of older homes in Rhode Island.
The judge sided with the companies on the issue of punitive damages after they argued that there was no evidence they engaged in reckless or willful conduct amounting to a crime. They pointed out that lead paint was legal at the time they were manufacturing the product.
Punitive damages are meant to punish and deter misconduct.
Jack McConnell, a lawyer representing the state, said he was disappointed, but welcomed the overall verdict requiring the companies to shoulder the cleanup costs.
"You don't often see that in the law, where people are ordered to go back and fix a problem -- and that's what this is all about," McConnell said.
Now we need other states and congress to act to abate the lead paint problems in a meaningful way that doesn't cost landlords--and eventually tenants that bear the cost in higher rents--a fortune. It would also be nice if we avoided construction industry protectionism in the future so we avoid this type of problem in the future. But history tells us that such will not be the case... anyone remember the UFFI problem?
posted by Jim Downey at 5:04 AM
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