"Thomas" - How did DuPont Get into this Pickle

Is DuPont in this whole lead paint public nuisance/personal injury pickle because it is such a big deep pocket?  Sure seems that way when you read the opening statements to "Thomas."  Jon Harmon is representing DuPont.  Most of what he contends would seem to mitigate against DuPont even being a defendant.  Only 1 plaintiff contention might hold up -that's 1 out of 4. And it won't even do that if the defendants can convince the jury that there is zero match between the chips in Steven Thomas' residences and what they manufactured.

Here is the thrust of Harmon's opening statements.

• DuPont was only in the business of manufacturing white lead carbonate from 1917 to 1924 - 7 years.  That was through its acquisition of Harrison Works.  And CSI-type analysis, both by the plaintiff and by DuPont scientists, shows a zero match between the lead chips found in the two residences Steven Thomas claims caused lead poisoning and those manufactured by DuPont.  Moreover that 7-year business was so unprofitable that DuPont exited it.

• After 1924, DuPont supplied to NL Industries, also a defendant in "Thomas" and acquitted in City of Milwaukee v NL Industries, raw materials to manufacture white lead carbonate. DuPont also specified the process for the manufacturing. In none of these business transactions was DuPont the actual manufacturer. However, we all are experts on supply chain management today so we can see why as a vendor, DuPont would be dragged into the mess.  Of all the plaintiff's contentions, this might have the most weight since we often hold suppliers accountable.  If I were the plaintiff attorney, this would be the line of questioning I would pursue: What did DuPont know and when did it know it about what it was supplying.  On the other hand, as NL Industries argues, there is zero match between the chips in Thomas' residences and the lead paint it manufactured.

• That now-infamous 1937 letter from Baltimore City to DuPont about the death of 22 children is, states Harmon, a plea for help with solving the problem of lead poisoning.  It is not, directly or indirectly, a finger pointed at DuPont as miscreant.  In pre-trial negotiations, there was much ado about this letter. Incidentally, this seems analogous to my receiving a letter from the IRS requesting my help with its communications and it being alluded to in court as a sign I got into the soup for not paying my taxes.

• DuPont was not a member of the trade association Lead Industries Association, at least not during the years relevant to the plaintiff attorneys' assertion of a conspiracy.  That conspiracy allegedly sought to suppress the knowledge of the hazards associated with lead paint and to boost sales of it in a changing marketplace.

In these litigious times, the bigger the deep pocket, the more threatened it might feel.  I can understand why DuPont could have been cowed/seduced into the agreement it made with Rhode Island Attorney General Patrick Lynch.  Yet, that agreement has proved a curse, not a blessing.  As we see in "Thomas," the company is still on the hook for lead paint.  The money didn't buy immunity in other states.  The terms and conditions of the agreement proved so controversial that DuPont experienced a public relations fallout. Fortunately, it seems to have learned from its mistake and is here in court, duking it out with the plaintiff bar. 

DuPont's experience with lead paint litigation and negotiating an agreement would be an interesting case study for a law journal.