Ohio Drops Lead Paint Cleanup Lawsuit; New Attorney General Ends Effort To Compel Paint Makers To Pay

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February 16, 2009

NEWS; Pg. 4

565 words

Ohio drops lead paint cleanup lawsuit; New attorney general ends effort to compel paint makers to pay

MARK A. HOFMANN

COLUMBUS, Ohio-Business groups are praising Ohio's decision to drop a suit that it brought against lead paint manufacturers in an effort to force them to pay for the abatement of lead paint statewide.

Attorney General Richard Cordray said he voluntarily dropped the case-State of Ohio vs. Sherwin-Williams Co. et al.-earlier this month. His predecessor, Marc Dann, brought the public nuisance suit in April 2007 and amended the complaint later that year.

The amended complaint, which was filed in Franklin County, Ohio, Court of Common Pleas, accused Sherwin-Williams Co., nine other named defendants and an unknown number of ``John Doe corporations'' of creating a public nuisance by manufacturing and using lead-based paint despite knowing of its potentially harmful effects.

Among other things, the complaint sought to have the defendants ``detect and abate lead in pigments, coatings and/or paint in all residences, schools, hospitals, and all public and private buildings within the state accessible to children'' and to pay all costs-including attorney fees-that the state incurred in its investigation and prosecution of the case. The complaint also sought a jury trial.

However, Mr. Dann resigned in May 2008 while facing possible impeachment over an extramarital affair with a staffer. Mr. Cordray was elected to succeed him last November.

``I understand and strongly agree that exposure to lead paint is a very real problem,'' Mr. Cordray said in a statement about his decision to drop the suit. ``But I also know that not every problem can be solved by a lawsuit.''

The statement added that ``after assessing the law, facts and adverse legal rulings in these types of cases nationally, the attorney general concluded that those at risk-and Ohio's economy-would be best served by focusing on how public/private partnerships can be enhanced to address any existing problems with lead paint exposure.''

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Mr. Cordray's decision came less than a year after Rhode Island's Supreme Court ruled that a lower court erred in finding that three former manufacturers of lead paint created a public nuisance under Rhode Island law by making and selling a harmful product (BI, July 7, 2008).

The Ohio Manufacturers Assn., which had fought the suit since its filing, hailed the decision.

``Needless to say, we believed the lawsuit to be unlawful then as we do today,'' said Ryan Augsburger, managing director-public policy services for the Columbus-based business group. ``The OMA is very pleased by Attorney General Cordray's decision to drop the so-called lead paint lawsuit. Although we don't believe the case would have been successful under Ohio law if litigated, the very presence of such a lawsuit has a deterring effect on economic development and jobs. Ohio can ill afford to lose ground on either front.''

``The Ohio attorney general's decision to drop this ill-conceived lawsuit thwarts the latest attempt by the plaintiffs' bar to turn lead paint into its next cash cow,'' said Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform in Washington in a statement.

``In abandoning the suit, Attorney General Cordray follows the legal pattern set by the Supreme Courts of Missouri, New Jersey and Rhode Island, each of which repudiated the application of a novel, but improper, use of the centuries-old public nuisance theory to establish liability for alleged lead paint injuries.''

February 20, 2009