Law And More

Milwaukee v NL - Midwest Attorney/Sherwin-Williams Shareholder Opines

A Midwest attorney who is not associated with City of Milwaukee v NL but is a Sherwin-Williams' shareholder opines on the trial so far, off-the-record:

"Based on what I read in the trial transcript so far I don't view the two sides as equally matched.  Already I pick up weaknesses on the plaintiff side.  For instance, there is a lack of creativity in the plaintiff's opening.  In fact, I perceive that opening as giving ammunition to the defense to discredit the emotional speculation that was spewed out.  From following this lead paint public nuisance litigation for years, I do not assess that the studies cited by the plaintiff are credible.  Also, there never has been a causal link established from lead dust to lead poisoning, only precautions that the paint industries provide warnings.

"As for using as an 'expert witness' a historian such as Gerald Markowitz who has already been found to be less than objective is risky to the plaintiff.  This is a civil trial but in a criminal law trial prosecutors have no gray area when presenting situations which ware later deemed to be biased for false."

Reader comment welcome.  Please contact Mgenova981@aol.com.

Milwaukee v NL - Cross Began of Gerald Markowitz

This afternoon in Milwaukee v NL Industries the defense began its cross examination of plaintiff witness Gerald Markowitz, Ph.D.  The problem with Markowitz as a witness starts with the reality that he, along with his co-author David Rosner, Ph.D., published nine books, all anti-business.  Some of their joint books are:

• "Deceit and Denial: The Deadly Politics of Industrial Pollution," 2007
• "Deadly Dust: Silicosis and the Politics of Industrial Disease in Twentieth Century America," 1991.
• "Dying for Work: Workers' Safety and Health in Twentieth Century America, 1987.
• "Slaves of Depression: Workers Letters About Life on the Job," 1987

And, in the April 23, 2007 issue of THE NATION, Markowitz and Rosner jointly published an opinion-editorial "Getting the Lead Out."  In it, they say, "For industry in general the message [of the verdict in favor of the state in the Rhode Island lead paint trial] is more stark: If you knowingly harm people, you will be held accountable."

Nothing wrong with that point of view, except that he and Rosner were presented at the Rhode Island lead paint trial as objective researchers on the history of the lead industry.  Yet, their credentials clearly indicate a mission to expose the alleged misdeeds of corporate America.

And so is Markowitz the certified muckraker an appropriate witness for this Milwaukee trial?  The trial, as Richard Lewis said in his opening arguments, is about three central questions.  Those questions include an investigation about is there is a public health problem and what is it, who or what should be held accountable for it if one exists, and if there is a problem what is the solution. 

Having Markowitz contribute to this drilling down for facts and interpretations seems like an counterproductive investment of Milwaukee citizens' tax-payer money.  Wouldn't a more neural expert, particularly one deeply familiar with Milwaukee, have been a more sensible choice?  Some of us might opine that having Markowitz commenting on the history of the lead paint industry and its trade association Lead Industries Association (LIA) is analogous to having Rosie O'Donnell called as an expert witness on the Iraq War and President George W. Bush's responsibility for it. 

Readers have been asking me how they can retrieve my live-blogging on the Rhode Island lead paint trial (November 1, 2005-February 22, 2006) in general and more particularly the testimony and cross-examinations of Markowitz and Rosner.  All that is on my other syndicated blog http://janegenova.com.  The first week of so is under "Current Events."  After that, the blog posts are under "legal."  So, find all that here. 

Readers of that general blog demanded last August I get the lead out.  So, I created this niche legal blog which is heavily focused on the lead paint public nuisance trends and trials.

Milwaukee v NL - Gerald Markowitz On The Stand

Gerald Markowitz, Ph.D., professor of history at John Jay College and in the Graduate School and University Center at City University of New York, is testifying on the stand in City of Milwaukee v NL Industries.  We lead-paint watchers know Professor Markowitz well, of course 

Along with David Rosner, professor of history at Columbia University, Markowitz was a major plaintiff witness at the Rhode Island lead paint trial.  His essential role was to provide historical evidence of the alleged nefarious activities of the lead paint industry through its trade association Lead Industries Association (LIA). 

He and Rosner were given access to "thousands" of documents supposedly proving that both the individual former lead paint companies and the LIA had detailed knowledge of the hazards of lead paint early in the 20th century. He and Rosner contend there is evidence to show that despite this knowledge the paint companies and LIA conspired to promote and sell more pay.

Apparently that evidence wasn't all that compelling to the RI Superior Court Justice presiding over the trial.  Judge Michael Silverstein tossed out the LIA conspiracy charge because of the lack of evidence.  Rosner's contentions are cited as one of the reasons for the appeal to the RI Supreme Court by defendants Sherwin-Williams, Millennium Holdings and NL Industries.

Perhaps the most jarring aspect of the Markowitz-Rosner testimony during the RI lead paint trial was their positioning themselves as disinterested scholars.  They said under oath that they entered their research of the history of the lead paint industry as objective and open-minded.  Yet, under cross-examination it was disclosed that they had contact with those associated with the lead paint public nuisance bar prior to commencing their investigation of the documents. 

When I interviewed the foreman of the RI lead paint trial jury, he snickered and said "those historians."  The foreman praised the testimony of the medical experts.  He found that highly credible.

My hunch is that the plaintiff's pursuit of this conspiracy theory in the Milwaukee trial and the use of Markowitz as a witness will weaken the case.  I can just see a Midwestern jury scratching its head as this New York-based professor of history gushes about the opportunity he had to objectively pore through the thousands of documents - which yield no solid evidence of a lead paint cabal more than half a century ago.

Milwaukee v NL - Scott Could Break New Ground On IQ Issue

City of Milwaukee v NL Industries could be the trial that blows up the myths about lead and diminished IQ.  Lead defense attorney Donald Scott introduced that subject in his opening remarks May 29th.

Not that this will be the first time that Former Lead Paint Inc. raises questions about the conventional wisdom that children with elevated levels of lead in their blood risk irreversible neurological damage, including a lowering of IQ.  In the Rhode Island lead paint trial several defense attorneys, including both Paul Michael Pohl and Laura Ellsworth from Jones Day, pushed back. But the four-month trial contained so many issues - plus the distraction of the conspiracy issue attached to the Lead Industries Association - that this matter got buried.

Now Scott is bringing it to the forefront.  In his opening statements, Scott states, "there have been a number of studies ... published within the last couple of years, by universities working with the National Institutes of Health in Washington, D.C., which is the medical research funding arm of the U.S. government."

Scott then goes on to report the findings, which even surprised the researchers. They found, if a child had a high lead level at, say, two years old, that child's IQ could be lower than a child's with a lower or no lead level.

And, Scott notes, "they expected it to persist in the school years.  They looked for that.  As the children's lead went down, by the time they were five years old, so that they were comparing children who always had low lead with ones who had lead as high as 25 to 55 micrograms and then were low, what did they find? Persistence? Brain damage? ADHD? They found that they couldn't tell them apart. And this really surprised them.  It was not kind of the conventional wisdom."

Scott goes on to say, "They reported this for IQs, they reported it for ADHD, they reported it for other behavior, and anything they looked at, they couldn't tell them apart at age five, based on whether they had high or low lead when they were two years old."

This IQ issue is the most emotional one in childhood lead poisoning.  If Scott shows damage is reversible, the plaintiff bar, government agencies and child advocates could be left without their moral ace in the hole as well as their contentions about the economic cost of permanent neurological damage to society.  At the RI lead paint trial, so much of the testimony of Dr. Patricia Nolan, former head of the RI Health Dept, focused on the tragedy of diminished IQ to an individual's potential and the literal cost to the state.

My hunch? This particular trial will put out there into the mainstream the real facts about the residue of lead paint in residences - everything from its actual dangers to the worst case scenarios, which it will be shown, aren't what they have been described to be. The public nuisance plaintiff bar, crusading state attorneys general and child advocates could wind up looking not only foolish but as having reckless agendas.

Deadly Sheen - Wall Street Expert Comments on Imported Toys with Lead Finish

Here's another opinion on why those toys with hazardous lead content continue to imported into the U.S. and be sold in the Big Boxes.

Value investor and publisher of ValuePlays.com Todd Sullivan comments:

"Lead paint, for all its dangers, is a superior product.  These producers use it because it has a better sheen, spreads better, lasts longer, and when all is said and done, saves them money. Since there is no recourse other than taking a few dolls off the shelves, they will continue.  Our children are being assaulted in just the past month by high levels of lead in chalk, furniture and dolls, all imported from other countries (Hong Kong, China, Mexico).

"Also, these events never make it to the 'mainstream' media.  Where is 20/20 or Dateline doing a piece on the lead paint being imported into the country today, for our children to invest today?  Where are the articles in the 'major' newspapers? A negative verdict for a company that has not produced lead paint in half a century will get a front-page headline - yet the leaded imports which could poison kids now?  No biggie."

Reader comment welcome.  Please contact Mgenova981@aol.com.

The Shoe-Sniffer - Pro Bono Attorney Needed

In Wisconsin on Tuesday the courts were really jumping after the long holiday weekend. In Milwaukee, City of Milwaukee v NL Industries got under way.  And over in Waukesha, reports MILWAUKEE JOURNAL SENTINEL writer Jacqueline Seibel, in County Circuit Court Erik D. Heinrich was charged with three counts of burglary.

Heinrich allegedly stole more than 1500 pairs of teenage girls' athletic shoes over a two-year time span. Seibel quoted Waukesha police Lt. William Graham as opining, "He [Heinrich] liked to smell them."  We legal types want to know: On what basis is the Lt. inferring that? Further, how do the police know that the shoes which they found in Heinrich's home weren't gifts, purchases or left behind by former girlfriends?

Clearly, with all the defense attorneys in town for the lead-paint trial in Milwaukee, one might find it a novel experience to represent the alleged shoe-sniffer on a pro-bono basis.  He appeared without a lawyer and claims he probably wouldn't be able to pony up the $10,000 needed for bail.  He has been unemployed.  In his previous job as a cable installer he allegedly had used master keys to gain access to local schools.  The rest is in the police report.

Those Cute & Deadly Toys - Stick It To The Man

Every week, it seems, there's a voluntary recall of those cheap toys imported from China or Hong Kong that have hazardous lead-paint finishes and are being sold in those Big Box stores.  I asked why this can be happening in such a sophisticated nation.  A legal expert opines, off-the-record.

"I think this keeps happening because the toys are produced in places where we [the U.S.] have no ability to oversee the production.  And then they are sold in large stores which don't check for that sort of thing.  The more we import cheap toys like these, the more risk there is of lead poisoning.  And, Jane, I agree that it is premature to hear tell of 'no injuries.'

"An interesting twist on this would be if the plaintiff bar decided to pursue litigation against the Big Box stores or the importers of these toys in an effort to force them to stop purchasing and selling them. I suspect, though, that won't happen.  That's because it's less glamorous than going after the paint companies and because it would essentially be an action for injunctive relief [i.e. stop selling these items and investigate to make sure you don't bring in any more leaded items] which would mean no really big payday.

"That would also mean acknowledging that lead paint is not the only source of lead.  And that would undermine the public nuisance actions.  Even still, isn't there even one plaintiff firm out there which has a grudge against the Wal-Mart-types and would want to Stick It To The Man?"

Reader comment always welcome.  Please contact Mgenova981@aol.com.

Milwaukee v NL - Todd Sullivan's Challenge to Don Scott

Value investor and publisher of ValuePlays.com Todd Sullivan lays down a challenge to lead defense attorney Donald Scott in City of Milwaukee v NL Industries.

Sullivan says, "I would to see Scott lay down the chalk, bear, the candy and other recent lead-contaminated items on a table in front of the jury and ask them, 'What is the most likely cause of lead poisoning - toy chalk, a bear, candy or a window sill?'"  Then, Scott can say, "If you can't commit, you must acquit."

Milwaukee v NL - Testimony of Seth Foldy Continues

Today in Milwaukee v NL Industries, testimony by plaintiff witness Dr. Seth Foldy continues.  In the opening statements, lead plaintiff attorney Richard Lewis describes Foldy this way:

"He [Foldy] was the health commissioner from 1996 to 2004.  And when he came to this city to to this kind of work [dealing with lead poisoning] after being trained in Cleveland, another old city with lead poisoning problems, after being trained there as a physician and taking care of kids who were lead poisoned, he came to this city, and at that time, 1996, there were nearly 7000 cases in a year.  How does a Health Department follow, take care of 7000 children?  That - that- it's overwhelming.  It's just overwhelming."

Lewis then describes how Foldy [Much like Dr. Patricia Nolan in RI] took the bull by the horns. From what I read of this witness it appears he could play a dual role in the trial - as both supporting the plaintiff's contentions as well as the defense's.  This could have been the situation with Nolan, had the defense called her as its witness.  Both Foldy and Nolan bear witness to the remarkable progress made in managing the lead poisoning problem.  I wonder if defense attorney Donald Scott will leverage Foldy's achievenments to support the argument that the status quo is working fine, thank you.

Milwaukee v NL - Sharks Jumped the Shark, Opines Attorney

A lead-paint watcher who's also an attorney has an interesting observation on what's going down and going to go down in City of Milwaukee v NL Industries.

Off-the-record, this lawyer opines:

"Jumping the shark [according to Wikipedia] is a popular metaphor used originally to denote the tipping point at which a popular TV series is deemed by a viewer to have passed its peak, or has introduced plot twists that are illogical or fanciful in terms of everything that have preceded them.  Once a show has jumped the shark, the viewer senses a noticeable decline in quality or feels the show has undergone too many changes to retain its original charm.

"The term is derived from an infamous episode of 'Happy Days,' in which Fonzie jumped over a shark on water skies.  Thereafter the writers were unable to successfully return the players to the quaint nostalgia of a Milwaukee after-school soda place, circa late 1950s-early 1960s.  Small wonder ...

"Ironic, that as the wealthy out-of-state plaintiffs' firms take their long-playing show to Milwaukee, their theory of the case may have now jumped the shark ... in essence sharks jumping the sharks.

"The notion of a half-a-century conspiracy between one of the largest producers of lead products for all manners of legitimate uses world-wide and involving tiny Milwaukee-based Mautz paint company [where Richie undoubtedly worked summer jobs] and its ilk, is as illogically unconvincing as Fonzie surfing up a storm.

"Keen observers probably share a visceral sense that this legal fishing expedition has undergone too many changes to retain its original 'appeal.' Thus, smart money this summer is on the Major League Milwaukee Brewers taking the Central Division in the National League, and the defendants taking the city's ill-advised public nuisance conspiracy case ..."

Reader opinions on Milwaukee welcome.  Please contact Mgenova981@aol.com