USA Today, October 1, 2007

LEAD-PAINT SUIT MAY THIN BURDEN OF PROOF

[Rachel's introduction: An important feature of the precautionary principle is shifting the burden of proof onto those engaged in potentially harmful activities, rather than requiring the public to "line up the dead bodies." This important lawsuit takes a step in the precautionary direction.]

By Greg Toppo, USA TODAY

A 17-year-old Milwaukee boy who was poisoned by lead as a baby faces off today against the nation's leading makers of lead-based house paint, hoping to prove that for half a century they knew their product made people sick.

It's the latest in a long string of lawsuits -- virtually all of them unsuccessful -- against companies such as Dutch Boy and Sherwin- Williams, which manufactured the paint Americans used for decades. But Steven Thomas' trial in Milwaukee could change the nature of product liability lawsuits.

Thomas' suit was filed in 1999 against Sherwin-Williams, American Cyanamid, NL Industries -- which marketed Dutch Boy -- and others. What sets it apart is a 2005 Wisconsin Supreme Court ruling that Thomas' attorneys don't need to prove the companies manufactured the specific paint that made him sick. All they have to prove is that the companies were making lead paint when the homes in which Thomas lived were built, from 1900 to 1905, that the paint sickened him and that the manufacturers knew of that danger.

"It's testing out the old theory of liability... that x party did y," says Jane Genova, a writer on legal topics who has followed this litigation for years. "Now with this, you don't have to prove the old things."

Thomas, who was born in 1990, suffered mental retardation after three years of exposure to lead dust and chips in two rental homes, court documents say. He'll require lifetime medical monitoring and is at high risk for kidney disease, high blood pressure and heart disease, among other conditions.

A decision in Thomas' favor could bring an explosion in suits on behalf of children sickened by lead. More than 1,400 Milwaukee children tested positive for high lead levels in 2006 alone, the city's health department says. The American Academy of Pediatrics estimates that one in four U.S. children lives in housing with deteriorated lead paint.

Given their track records, cases such as Thomas' are long shots. The first was filed in 1987, and since then more than 100 have followed. Only five have made it to trial, and only one, in Rhode Island in 2005, has been successful. In that case, the state sued three paint makers. State officials last month said it will cost about $2.4 billion to clean up hundreds of thousands of lead-painted homes. The companies are appealing the verdict, in which a jury decided the paint constituted a "public nuisance" that the manufacturers had to clean up.

Thomas' legal team says paint makers knew as far back as the early 1900s that lead was dangerous but fought attempts to regulate or ban it. Paint manufacturers have said in court that they knew lead paint was dangerous, but that, properly handled, it was safe -- indeed, they have pointed to federal standards that recommended homeowners use lead paint because it was durable. Through the 1940s, house paint was up to 50% lead by weight. In 1978, the U.S. government banned lead altogether from paint.