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Should Paint Makers Pay?

Billions of dollars are at stake for former lead-paint manufacturers in a Rhode Island lawsuit that triggered a flurry of similar suits across the country. Columbus and Ohio filed suits more than a year ago using the same legal argument as Rhode Island: Lead paint is a public nuisance that threatens the health and safety of residents, and manufacturers should remove it from hundreds of thousands of homes.

"I think the Rhode Island case is pivotal," said John P. Kennedy, a Columbus lawyer with Crabbe Brown & James, which teamed up with a Rhode Island law firm to help Columbus with its suit.

In February 2006, a Rhode Island jury found three paint companies, including Cleveland-based Sherwin-Williams, liable for creating a public nuisance.

Since then, the state has filed a $2.4 billion cleanup plan with the trial court to remove lead paint from 240,000 homes -- "every home that potentially has lead," said Jack McConnell, a lawyer with the law firm of Motley Rice in Providence, R.I. Motley Rice developed the public-nuisance argument.

In filing the suit, Columbus officials said cleaning up an estimated 150,000 contaminated homes could cost as much as $1.7 billion.

The Rhode Island case showed public health officials there is a way to fix the problem, said David Rosner, a Columbia University professor of history and public health and a consultant on the case there.

"People in public health felt all they could do is figure which kids were sick," he said.

But the Rhode Island case is no guarantee. Since Columbus filed its lawsuit in December 2006, supreme courts in Missouri and New Jersey have ruled for the paint companies.

Those courts rejected the public-nuisance arguments, said Bonnie J. Campbell, a former Iowa attorney general who now represents the paint companies.

The rulings said that communities must prove that specific companies and their products created the hazard.

The Rhode Island Supreme Court is expected to issue a decision by July. Columbus City Attorney Richard C. Pfeiffer Jr. said that decision will affect whether the city continues with its case.

Columbus Mayor Michael B. Coleman said he'd like to do more to remove lead hazards before children get sick. But he said the city's resources are limited, and that's why the city sued the paint companies.

"The taxpayers are dealing with the problem they created," he said.

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