Attorney Vows To Appeal Lead Verdict

A Milwaukee attorney vowed today that he would continue his legal battle with paint manufacturers after a jury found his client had not been injured by ingesting lead paint.

“There are many grounds for appeal,” said Peter Earle, the attorney who sued on behalf of a 17-year-old youth claiming his mental retardation was caused by lead paint products.

The verdict in Milwaukee County Circuit Court was a victory for the defendant companies in the case: Atlantic Richfield Co., Millennium Holdings LLC, NL Industries Inc. and The Sherwin Williams Company.

Although the jury found that the plaintiff, Steven Thomas, had ingested white lead carbonate as a small child, they found he was not brain damaged by paint or the medical treatment used to remove lead from his system.

The case drew national attention because lead paint injury has been the subject of continuing litigation in many states and Wisconsin statutes have a lower standard for what the plaintiff must prove to secure damages.

Many of the actions have been brought by states and municipalities under public nuisance statutes. The city of Milwaukee lost such a case in June.

In response to the paint litigation, certain Lloyd's syndicates and more than 50 other insurers filed suit in February 2006, in New York State Supreme Court, seeking to nullify any duty to indemnify various paint manufacturers for the cost of abatement or damages from their products.

Portions of that case are still pending.

Mr. Earle said his was the first case of its kind to be filed under the theory of risk contribution, based on the contention that the paint manufacturers knew their product was injurious and created a risk of harm.

He said he has 35 more cases and each one is different. “This was strike one,” he said, adding under law “we don't have three strikes and you're out.”

Mr. Earle said he would appeal on the grounds that trial Judge Richard Sankovitz permitted testimony that was irrelevant and prejudicial and dealt with conduct issues such as his client's misconduct and absenteeism from school that had “nothing to do with cognitive impairment.”

According to Mr. Earle, defense witness Nancy Hebben, a neuro-psychologist, testified that it didn't matter that amounts of lead were found in the youth's system and “lead cannot cause brain damage–period.”

The suit sought to recover $2.2 million in damages. Before the case went to trial the plaintiff settled with two landlords of homes where he had lived and American Cyanamid for $156,000.

Minnesota attorney Scott Smith, outside counsel for Millennium Holdings, said it was correct to say the case would not set any legal precedent, but “the reality of the situation” is a precedent.

“The jury found he [the plaintiff] was not injured, although he was found to have an elevated level of lead in his blood,” he said.

Mr. Smith said high levels are fairly common for many people because of lead that existed in the air before oil companies were required to take the lead out of gasoline.

Plaintiffs, he said, need to prove injury, and “the mere fact that they were exposed will not suffice.”

Although the verdict meant the jury did not have to take up the issue of the manufacturers' fault for a product they produced 90 years ago, Mr. Smith said, in talking to jurors later, “they would have gone the defense way.”

He added that the case made it “quite a bit more uphill” for plaintiffs in lead cases. He said issues of the plaintiff's school conduct were relevant because the judge found “they bore heavily on issues of learning ability and whether he could ever hold a job and his willingness to earn a living.”

He said the defense expert testified you look at the whole environment when you assess learning ability, so testimony was permitted about intelligence quotient levels in the plaintiff's family.