In Ohio, the Athens City Council has decided to join the public nuisance lawsuit against the former lead paint companies. Six other cities in OH are already participating in this suit which is scheduled to be filed in early April.
There's more. As the ATHENS NEWS reports, "The Ohio Attorney General's office may also get involved in the lawsuit, and in that case the suit would cover the entire state." The Fourth Ward representative Debbie Phillips claims that the former lead paint companies were allegedly aware of the potential hazards of lead paint since the early 1900s but ignored them and continued manufacturing paint with lead pigments in it.
Given the growing severity of the public nuisance litigation movement in OH, I asked around our pool of legal commentators for an analysis and response. We lucked out. An attorney with some knowledge of public nuisance law was willing to share with us an opinion.
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Attorney with expertise in pubic nuisance theory and applications opines on the Athens, Ohio lawsuit, off-the-record:
Here we have yet another Ohio city - Athens this time - drinking the Public Nuisance Kool Aid. I am totally amazed and frankly baffled when I read and then re-read the ATHENS NEWS article about this suit.
For example, consider Debbie Phillips' analysis of why the lawsuit decision had been made. She claims that allegedly the paint companies were aware as way back as the early 1900s of the potential hazards of lead paint and yet ignored this. How does Ms. Phillips know this? What was the due diligence that ensued to arrive at this conclusion?
Haven't the history courses provided by the billions spent on public education taught even the average middle-school student that what had occurred at one period of time might not happen in another time. Moreover, how we understand that former time is merely a mental reconstruction, and not necessarily a good one. The best and brightest historians are still positing their theories about what did in Rome.
But there are some things we do know about the past. They come in the forms of facts that are contained in certified documents. The facts clearly tell us that the paint companies during the first half of the 20th century reduced and eliminated lead pigments in residential interior paint as quickly as medical science learned of the hazards - and much more quickly than the federal government dictated.
Sherwin-Williams, which is headquartered in Ohio, eliminated all lead pigment in household interior paints long before its competitors and way before the federal ban in 1978. Did that unilateral move hurt Sherwin-Williams' profits? I don't know. What I do know is that the same record for bold corporate responsibility continues into today. BUSINESS WEEK recently recognized Sherwin-Williams as one of the top all-around best 50 performers in business.
Athens, like the other cities planning to sue the former lead paint companies, seems to be totally ignoring any facts. Instead it seems to be engaged in a dangerous form of magical thinking. Funds from a settlement or a verdict, the cities seem to assume, will solve their fiscal problems. Well, so far, despite almost a decade of litigation in Rhode Island, no money has been won or lost. And by where Sherwin-Williams' stock is, Wall Street is betting that no money will be won by any state or city or lost by any former lead paint company.
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