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Sunday, April 08, 2007

Law - More on: "6 Ohio Cities Rush to File Suits Against Makers of Lead Paint"

Updating this ILB entry from Jan. 6, 2007, that began with this quote from a NY Times story:

Racing against a proposed state law that would limit paint manufacturers’ liability for lead poisoning in aging neighborhoods, Cincinnati has joined five other Ohio cities in filing suits that seek millions of dollars from the companies to clean up lead paint.
the Cleveland Plain Dealer reported Wednesday:
Ohio Attorney General Marc Dann has sued Cleveland-based Sherwin-Williams Co. and several other paint-related companies over lead paint in Ohio homes.

The filing Monday in Franklin County Common Pleas Court in Columbus tracks similar suits brought last year by five Ohio cities -- Columbus, Cincinnati, East Cleveland, Toledo and Lancaster -- and could eventually replace those efforts.

The attorney general's action now covers all areas of the state, including Cleveland, that had not previously sued over lead paint hazards. * * *

The central premise of the Ohio suits is that lead paint should be declared a public nuisance and that the defendants should be held responsible for removing the danger from buildings and homes.

The Ohio litigation follows a state court verdict in Rhode Island in 2005 that found three defendants, including Sherwin-Williams, responsible for lead hazards in an estimated 240,000 homes. The verdict, based on the same theory now being tried in Ohio, has been appealed to the Rhode Island Supreme Court.

By filing the suit Monday, the Ohio attorney general's office believes it will be protected from the effects of Senate Bill 117, which former Gov. Bob Taft allowed to pass into law just before he left office, only to have it vetoed by current Gov. Ted Strickland once he took over.

The bill includes language that would make it harder to sue on public-nuisance grounds, requiring instead that lead-paint plaintiffs meet a higher burden of proof required under product liability law.

The Ohio Supreme Court is considering a challenge by Republican legislative leaders that could lead to Strickland's veto being overturned. The attorney general's office has asked the court to hold off on its public-nuisance complaint until the veto's validity is determined.

If the veto is overturned, Dann's office believes its suit would not be subject to the new law because the litigation was filed within 90 days of when the law took effect. The starting point for that 90-day period is undetermined, but the earliest date for time to run out would have been Tuesday.

Proponents of the bill are still expected to assert that no prior suit is grandfathered because the changes in the law were simply meant as clarification of the General Assembly's intent in prior legislation.

Fascinating. The Columbus Dispatch had this story, along on April 4th. Some quoters:
Saying a veto fight between Gov. Ted Strickland and the legislature shouldn't block Ohio from potentially recouping millions of dollars from lead-paint manufacturers, Attorney General Marc Dann yesterday sued 10 of the companies.

If Dann prevails, Ohio would become only the second state to win a judgment against manufacturers of lead paint, which was outlawed in 1978 because of lasting health consequences to children.

Dann acted yesterday rather than wait for the Ohio Supreme Court to decide whether Strickland acted legally when he vetoed a bill Jan. 8 that would prevent cities from suing companies that made lead paint. The law would have taken effect today.

Republican legislative leaders sued Secretary of State Jennifer Brunner on Feb. 2 in an attempt to overturn Strickland's veto, arguing that she lacked the authority to forward the bill to the governor on his first day in office. The Supreme Court -- all seven of its justices Republicans -- is scheduled to take up the case May 1. * * *

Most lead-paint lawsuits have been dismissed because the product was legal and because of the difficulty of identifying the responsible parties.

A Rhode Island jury last year found three paint companies guilty of creating a public nuisance, and a judge held the companies responsible for cleaning up contaminated homes. Experts say that cost likely will eclipse $1 billion. The paint companies have appealed to the Rhode Island Supreme Court.

What about Indiana? Could a nuisance action such as that brought in Rhode Island and Ohio be brought successfuly in Indiana, or has legislation already closed the door?

BTW, I remember years back when industry argued we did not need environmental laws - if there was a problem, it could be resolved using common law nuisance remedies. However, it seems that once nuisance actions began to be used successfully against poultry companies and lead paint manufacturers, legislation to limit nuisance actions began to be passed.

Indiana has a statute on nuisance actions - IC 32-30-6. It has provisions stating that various operations, including industrial operations, are not a nuisance. A bill before the General Assembly this year, SB 173, would provide that a court may award reasonable costs and attorney's fees to a forestry, agricultural, or industrial operation that successfully defends a nuisance action. The author is Senator Jackman, who is, I believe, a hog farmer. The bill appears to have died in the House this year.

Posted by Marcia Oddi on April 8, 2007 10:50 AM
Posted to Environment | General Law Related