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R.I. Can't Seek Lead Paint Damages

The state cannot seek punitive damages against three former lead paint makers found liable for creating a public nuisance that has poisoned thousands of children, a superior court judge ruled Tuesday.

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 cost billions of dollars. But Tuesday's decision means a jury will not be allowed to tack on punitive damages along with cleanup costs.

Last week, a jury decided the makers of lead paint created a public nuisance that continues to poison children.

Superior Court Judge Michael Silverstein, reading a lengthy written ruling before a packed courtroom, said it was not necessary to punish the defendants with punitive damages they stopped putting lead in paint years ago.

Silverstein said the state failed to meet the high standard required to pursue punitive damages against the companies.

The judge will decide later what the companies must do to fix the problems caused by lead paint, which was banned in the United States in 1978. He dismissed jurors Tuesday afternoon.

Jack McConnell, a lawyer representing the state, said he was disappointed, but noted that the verdicts address the lead paint issue.

"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.

McConnell said he had been fielding calls since the state's victory from others looking to bring similar lawsuits, though he declined to be more specific.

The companies argued that Rhode Island case law requires those seeking punitive damages to present evidence of reckless or willful conduct amounting to criminality. But no evidence of such conduct was offered during the trial, the lawyers said.

They pointed out that lead-based paint was legal at the time they were manufacturing the product.

Silverstein sided with the companies' reasoning, saying he had no alternative but to prevent the state's claims for punitive damages.

Rhode Island and other states with a large number of older homes still have lead paint.

Lawyers for the state said during the trial that tens of thousands of children have suffered lead poisoning since the early 1990s and approximately 240,000 homes contain lead-based paint. Studies have shown children who ingest or breathe flaking paint or dust can suffer severe health problems, including behavioral disorders and brain damage.

The companies issued a statement saying there were a number of issues left to be decided by the court.

"These companies acted responsibly decades ago," the statement read.

At trial, the companies said lead paint remained a problem in only a narrow subsection of poorly maintained properties. They also said paint is not the only source of lead exposure and argued that the state did not prove a clear link between the lead pigment they made and children who were poisoned by lead in Rhode Island.

Jurors were asked to decide whether the presence of paint creates a public nuisance and, if so, whether the companies significantly contributed to the nuisance and should be required to help fix the problem.

The state wants the companies to pay for a program that would include home inspections, lead paint removal or abatement and public education. It did not estimate the cost.

Last June, the state agreed to drop DuPont Co. from the lawsuit after the company said it would pay several million dollars to the nonprofit group Children's Health Forum for lead paint remediation, public education, and compliance programs in Rhode Island.

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