PROVIDENCE, R.I. – Lisa Solano-Sanchez looks at her 16-year-old son and sees a bright, healthy, musically gifted teenager. A relief, considering she had no idea how he would turn out when she discovered he was poisoned by lead as a toddler.
Still, she scrutinizes her son’s behaviour and can’t help but wonder if he’s been held back from his full potential.
“Not knowing drives me crazy,” she said.
A decade before Flint, Michigan, there was Rhode Island, a tiny state that took a daring plunge by suing the paint industry to seek money for cleaning up a danger lurking on walls and windowsills in up to 80 per cent of its homes. The landmark lawsuit reverberates today not only in Flint, but also in California, where 10 cities and counties are fighting to hold onto a $1.1 billion victory over the same industry.
Though the lawsuit remains influential, Rhode Island has little to show for its short-lived triumph on Feb. 22, 2006. Two years later, the state’s highest court unanimously overturned the verdict, saying the paint industry couldn’t be held responsible.
“My heart is still broken at the Supreme Court’s decision that I still today cannot understand or justify,” said Democratic U.S. Sen. Sheldon Whitehouse, the former Rhode Island attorney general who had initiated the case.
Studies have tied lead poisoning to permanent damage to children’s brains and conditions including lowered intelligence, learning disabilities and behavioural problems. Symptoms can take years to manifest and be hard to confirm.
Leaded paint, easily ingested by children whose fingers touch contaminated dust or who pick up sweet-tasting flakes that end up in their mouth, was a known danger and outlawed in the late 1970s. Rhode Island was hardly the only place with potentially exposed children, but in a compact and old state with an elderly housing stock, the threat was especially acute.
In 1999, when Rhode Island first sued, more than 2,300 children under 6 years old, nearly 7 per cent of all those tested in the state, were found to have dangerously elevated levels of lead , according to the federal Centers for Disease Control and Prevention.
By 2014, that number had dropped to 217, just under 1 per cent of all the children tested statewide – but still 40 per cent above the national rate.
Education campaigns helped, health experts say, as did government subsidies for remediation and laws that put more responsibility on landlords. But blood tests still find more than 1,000 new cases each year of children with elevated levels.
Few families were immune, especially in poorer areas populated by racial minorities – a connection also seen in Flint, where the culprit is the water supply.
“Lead poisoning would have been wiped out” if the problem had been concentrated in wealthier and whiter neighbourhoods, said Roberta Hazen Aaronson, founder and director of the Childhood Lead Action Project.
“It’s not an equal-opportunity disease,” she said.
But wealthier families did fall victim.
Donna Lizotte thought she and her husband knew what they were doing when they bought a stately Victorian a decade ago in the desirable Edgewood district of Cranston and painted over old layers.
Later, their daughter was found to have 23 micrograms of lead per decilitre of blood. Federal health officials have said there is no safe level of lead in children’s blood, but that anything above 5 micrograms is high.
The family found evidence she had scratched at a wall near her crib.
“I thought lead poisoning was something that happened in dilapidated rental units,” said Lizotte, an educator and scientist with a doctorate in molecular biology. “Honestly, I think I was just naive.”
Now 10, the girl has attention deficit disorder, something correlated with lead poisoning, and other conditions.
“Here we are, 40 years later, it’s still everywhere,” she said. “I think the companies owe it to the children that are sick to fix it.”
Most companies began phasing out lead-based pigments decades before the U.S. banned them in residential paint in 1978. Plaintiffs have said the companies and the now-defunct Lead Industries Association, a trade group that declared bankruptcy during Rhode Island’s litigation, should have stopped promoting and selling the paint earlier because some of lead’s damaging effects had been known for a century.
Whitehouse – whose own two children had elevated lead levels – sued on the state’s behalf in 1999. It ended in a hung jury and mistrial, and was followed by a second trial argued by Whitehouse’s successor. A jury found three companies liable: Sherwin-Williams, Millennium Holdings and NL Industries.
After the industry appealed, Rhode Island’s highest court recognized the long-term health consequences but dismissed the theory that a problem in homes and apartment buildings was a public nuisance for which paint companies were liable. The judges declared it landlords’ responsibility to keep homes safe.
Courts and state officials elsewhere scrapped lawsuits that sought to hold manufacturers responsible for the windfall of cash needed to repair hazardous housing stock.
Only in California, where 10 cities and counties are defending a $1.1 billion victory, could paint companies still be liable for the lead in pigments they sold decades ago. Plaintiffs there are working with the same firm, Motley Rice, that Rhode Island hired and before that took on the asbestos and tobacco industries.
A phone call Friday to NL Industries rang unanswered and an email went unreturned. Millennium Holdings has declared bankruptcy.
Dale Leibach, a spokesman for Sherwin-Williams, declined to comment but pointed to the website http://www.leadlawsuits.com, which describes California’s ruling as “the aberration” that unfairly holds companies liable for creating a durable product that was in high demand.
“This litigation by hindsight has failed nationwide,” the website says, calling attention to the outcome in Rhode Island.
Despite the loss, Rhode Island’s lawsuit was an “important and innovative piece of litigation” that “demonstrated that a lot of the paint companies knew what was going on. They knew there were hazards and they continued selling the product,” said Erik Olson, an attorney who directs the health program of the Natural Resources Defence Council, which was not involved in the litigation.
“It showed that there was a pretty reasonable argument that this was one way to get the resources to have their housing cleaned up,” Olson said, “that the companies that created the problem ought to have a hand in cleaning it up.”