The campaign to eliminate childhood lead-based paint poisoning–underway all over the country through government and private-sector initiatives–is becoming one of the great American public health success stories. It is a largely untold one.
Reports on children undergoing chelation because they are lead-poisoned, such as the one in the October 29 edition of USA Today, are heart-wrenching. To be sure, no child should have to endure such torture.
But this report ignores how, early on, government helped cause this problem in the first place by requiring lead-based paint in public housing and other public buildings. The report also ignores how years of extensive public and private efforts are reducing the number of suffering children in virtually every part of the country. The headline–“only a few cities attack the dangers of old paint”–is just plain wrong.
Chicago is a good example. An aggressive program there has been astonishingly effective, according to the Illinois Department of Public Health. In 2001, 11.6 percent of the children tested there had elevated blood lead levels. By 2005, that level had dropped to 4.4 percent. Statewide levels declined in the same time period from 7.2 percent to 2.9 percent.
Another example is Rhode Island, where levels dropped from 8.81 percent in 1997 to 2.36 percent in 2006, according to the Centers for Disease Control. All over the country, CDC numbers tell the same story for this time period: Florida, 6.05 percent to 0.24 percent; Massachusetts, 3.23 percent to 0.84 percent; New York City, 3.33 percent to 0.85 percent; Oregon, 1.62 percent to 0.49 percent. Nationwide, the numbers dropped from 7.61 percent to 1.21 percent. Data for every state is available at http://www.cdc.gov/nceh/lead/surv/stats.htm.
Armed with massive federal funding, state and local governments have enacted laws forcing landlords–whose inattention to maintenance created lead hazard problems in the first place–to repair deteriorating lead-based paint and replace windows. Private not-for-profits and paint industry-funded efforts are helping to pay these costs. And it works in the marketplace through extensive public outreach and education to warn parents of the risks involved in buying or renting housing built before 1978 and not renovated since then.
Ignoring these promising results, many of those interviewed for the USA Today piece suggest more lawsuits by states and municipalities ought to be filed. These would seek billions of dollars in lead hazard abatement costs from paint companies who haven’t sold lead-based paint for more than 50 years. Such litigation, brought under novel allegations that products are public nuisances, is unfair and legally unwarranted.
Lead-based paint was widely used prior to 1950, and was highly regarded for its durability. Paint companies voluntarily took lead pigment off the market, largely by 1950, due to concern over its health risks.
Manufacturers of any and all defective products are legally liable for injuries caused by their use, under state laws carefully crafted to compensate victims while not creating unlimited and infinite liability for manufacturers. Allowing recovery under the public nuisance theory, would turn this liability allocation scheme on its head. And it is wrong as a matter of law, according to the supreme courts of New Jersey and Missouri, which tossed out public-nuisance cases against paint makers earlier this year. Rhode Island is the only place where such a suit has succeeded at trial, and that verdict is on appeal to that state’s Supreme Court.
States and municipalities are nevertheless being urged to file public-nuisance lawsuits against paint companies by private contingent fee lawyers hired by public officials. These lawyers hope to gorge themselves on massive legal fees. In Rhode Island alone, the firm representing the state in that trial stands to reap attorney fees totaling more than $384 million for that single case.
“It’s for the children,” these contingent fee lawyers say. But what the jury and the public never hear is that it’s really about the money.
Maureen Martin ([email protected]) is an attorney and senior fellow for legal affairs for The Heartland Institute.
Maureen Martin, a former legal fellow at The Heartland Institute, passed away on February 5, 2013.
