Jury says company not responsible for cleaning up Milwaukee homes
MILWAUKEE --A manufacturer of lead pigments once used in paint does not have to pay for the cleanup of some 11,000 Milwaukee properties contaminated by the banned substance, a jury ruled Friday.
The Milwaukee County Circuit Court jury rejected the city's claims that
That means the city, which has already done work to make the properties "lead-safe," will be forced to absorb the costs, according to Deborah Schwartz, a spokeswoman for the city's lead attorney on the case. Attorney Richard Lewis said the city's legal team would consider an appeal.
According to evidence presented at trial, more than 7,000 of Milwaukee's children had unsafe lead levels in their blood in 1996.
The city argued the Dallas-based firm created and conspired with others to create a public nuisance that poisoned thousands of Milwaukee youngsters.
The jury agreed the problem was a public nuisance but sided with NL Industries, saying the company did not intentionally and unreasonably engage in conduct that caused the nuisance and was not negligent.
Donald Scott, NL's primary lawyer in the case, argued in court the city and the federal government mandated the use of lead paint for their projects into the 1970s because it is so durable, even though the dangers were public knowledge.
"The city had been demanding, from the 1890s to the 1960s, demanding our product by name," Scott said Friday after the verdict. "This is a claim that never should have been brought."
Lewis said the city was disappointed in the ruling, but said the jury did make an important distinction.
"I think it's important that the jurors found this was a public nuisance," he said.
The federal government banned lead paint in 1978, but it is still present in older buildings. Lead in the bloodstream can cause neurological damage and learning disabilities, especially in children.
Two hours before the verdicts were read, Judge John Franke acknowledged to lawyers for both sides that he gave jurors "faulty instructions" before sending them to deliberate. Franke told the jurors at least 10 of the 12 must reach agreement for the verdicts to become final, but he didn't tell them the same 10 jurors had to agree on each issue being deliberated.
Ten jurors had agreed the lead-based paint was a nuisance, and a different 10 ruled that NL was not negligent. Franke took input from both sets of lawyers before deciding to accept the verdicts anyway, citing precedence from related cases.
Lewis declined to say whether the incomplete jury instructions would form a basis for appeal.
In February 2006, a jury found
The judge in that case will appoint a special master to help him determine how the companies should be forced to cleanup contaminated properties. The state says about 250,000 homes contain lead paint in Rhode Island.
But the Milwaukee verdict is the latest setback in recent cases in which local governments sought to force companies to pay for the cleanup of properties contaminated with lead paint.
Last week, two state Supreme Courts cracked down on similar litigation.
The New Jersey Supreme Court scuttled a lawsuit brought by 26 counties and towns and seeking to have paint makers cover the cost of removing lead paint. In Missouri, the Supreme Court there blocked a suit by St. Louis that sought to recover cleanup costs from former lead paint and pigment makers. The companies also received a favorable ruling in Illinois in 2005.
Wake Forest law professor Michael Green said it's hard to determine by the handful of rulings and individual factors in each case what the long-term future of lead paint litigation will be.
"It may be predictive of the way future trials will go," Green said of the Milwaukee ruling. "(But) if it's a difficulty-contested issue, it's very plausible the next case will work out differently."
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Associated Press Writer Colin Fly in Milwaukee contributed to this report.
