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Loyola University Chicago

Institute for Consumer Antitrust Studies

School of Law

Get The Lead Out!

 

Get the Lead Out!

 
Sam Zabek
Student Fellow of the Institute
Class of 2002
Institute for Consumer Antitrust Studies
Loyola University Chicago School of Law

In Chicago alone, over 12,000 children were diagnosed with lead poisoning last year. Lead poisoning leads to irreversible health problems. Lead-based paint infects thousands of children every year. Not only are the children suffering the repercussions of the lead-based paint, but taxpayers suffer as well.

Over the years, many private and government attorneys have sued the paint industry for its role in the harmful lead-based paint found in many buildings. However, the companies that sold lead-based paint have fended off dozens of attacks over the last twelve years while at the same time lawsuits against landlords were succeeding. The industry boasts that it has never lost or even settled a single case. In fact, no case had been set for trial until this year when a state court judge in Rhode Island agreed to proceed with the case brought by Rhode Island Attorney General Sheldon Whitehouse.

Whitehouse's case was originally filed on October 13, 1999. The suit claims that the companies failed to disclose the known hazards of lead paint to children. Whitehouse is seeking to hold the corporations accountable for manufacturing or selling the lead-based paints years ago. Whitehouse's case is the first time a state has tried to have the paint declared a public nuisance. Public nuisance is defined as creating a condition that unreasonably interferes with health, safety and comfort of the community. Furthermore, the Rhode Island case is the first suit against the paint companies to advance as far as a trial which started September 4, 2002.

A few of the defendants named in the Rhode Island, and other suits around the country being brought following Rhode Island's lead, are: E.I. DuPont deNemours & Co., Sherwin Williams Co., The O'Brien Corp. and North America Inc., just to name a few. The defendants have been winning the lead paint cases over the years by claiming that the lead paint does not cause any problems if the paint and building are properly maintained. They consistently place the blame on the landlords as the real culprits. The paint companies take the position that the more effective way to deal with the lead paint problem is to make better efforts to maintain properties and take action against landlords who let the property deteriorate.

Children are not the only ones who suffer the repercussions of the lead paint. Taxpayers and homeowners bear the cost of the harmful lead paint as well. If landlords, property owners and tenants are required to bear the costs of abatement, the cost of housing will continually rise affecting both residents and homeowners. Additionally, local governments spend millions and millions of dollars each year on the treatment services for children and abatement costs for the lead paint. The taxpayers ultimately bear those burdens as well.

The City of Chicago also filed suit against the paint companies on September 5, 2002. Chicago is the 36th case that has turned to the courts to hold the paint industry legally responsible for the costs it has occurred in dealing with lead paint issues. Counties from New Jersey to California, and the cities of San Francisco, Oakland, Milwaukee, and St. Louis are among those other governmental plaintiffs that have filed suits against paint companies for manufacturing and marketing a product they knew was unsafe.

The flow of litigation, not only government litigation, but private suits as well, that could stem from this issue is tremendous. The paint companies are obviously concerned with the recent progression of these cases, but the insurance industry is equally concerned about opening the floodgates to this issue. Like asbestos, agent orange, tobacco and other public health issues, lead paint is merely the latest example of important public policy issues being resolved through the private tort litigation process.

Loyola

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