Top Legal Experts Oppose Rule Change on Old Lead Paint Claims

Mar 10, 2000, 00:00 ET from National Paint & Coatings Association

    WASHINGTON, March 10 /PRNewswire/ -- The following release was issued
 today by the National Paint & Coatings Association:
     A panel of lawyers whose former titles include US Attorney General, US
 Solicitor General and Attorney General of Virginia yesterday afternoon urged a
 Maryland House Committee to reject a bill that would remove the burden of
 proof of causation from lawyers suing lead pigment makers and paint
 manufacturers for the health hazards of poorly maintained lead paint in old
 housing.  American companies effectively stopped making interior lead paint in
     Under the bill, lawyers would not have to prove that a particular
 company's product was used at a particular site, only that the company was
 making paint or paint additives containing lead around the time the site was
 painted.  The company could then be required to pay a portion of any award
 equal to its share of the market at that time.
     This legal theory, called "market share liability," has been consistently
 rejected by Maryland courts and an overwhelming majority of other courts that
 have considered it.  No state permits the application of this theory in
 lawsuits concerning lead paint.
     In testimony prepared for the House Judiciary Committee, former Attorney
 General Benjamin Civiletti urged defeat of the measure stating that such a law
 would "lead to unfair and grossly distorted findings of liability."
     Former Solicitor General of the United States and constitutional law
 expert, Walter E. Dellinger, in his testimony, described the proposal as
 suffering "from grave constitutional infirmities."  He further stated that the
 proposal "exceeds the limits of permissible retroactivity" under the Due
 Process Clause and also violates its "prohibition against arbitrary and
 irrational legislation."
     Andrew Miller, the former Virginia Attorney General representing the
 National Paint & Coatings Association, made a similar assessment and
 aggressively moved to refute allegations made earlier in the hearing by the
 bill's principal advocate, an attorney representing the Baltimore law firm
 suing former lead pigment makers and paint manufacturers, among others.
     Miller documented paint industry actions to protect the public from lead
 paint hazards years before laws required such actions and cited judicial
 findings of no lead or paint industry conspiracy against the public health.
 In rebutting bill proponents' charges that lead paint was promoted long after
 its dangers were widely known, he produced actual Federal Specifications
 requiring lead in government purchased exterior paint from as late as 1968,
 thirteen years after the industry voluntarily adopted a standard, sponsored by
 the American Academy of Pediatrics, which curtailed the use of lead in
 consumer paints.
     Miller concluded his testimony by describing to the Committee the
 CLEARCorps program through which the paint industry, along with the Shriver
 Center at the University of Maryland (UMBC), the AmeriCorps program and the
 Department of Housing & Urban Development, has been working for the past four
 years to develop and implement effective, low cost in-place management
 techniques to provide "lead safe" housing and innovative lead education
 programs in Baltimore and a number of other cities.
     The Committee is not expected to vote on the measure for several days and
 a companion bill is yet to be heard in the Senate.

SOURCE National Paint & Coatings Association