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Sherwin-Williams Shoots Back:

Two Ohio cities, Toledo and East Cleveland, sued paint manufacturer Sherwin-Williams for producing lead-based paint way back when. Now Sherwin-Williams is suing them back (along with Columbus) to stop the litigation. Among other things, Sherwin-Williams is challenging the cities' use of outside, contingenc-fee lawyers to press the litigation. This sounds like an interesing claim, so I will post a link to Sherwin-Williams complaint if I can track it down.

Sarah (mail) (www):
Gosh, as an Ohio (and Columbus) taxpayer I just love it when our tax money is squandered.

The contingency fee thing I don't get -- are they saying that only lawyers who are actually employed on a full-time basis by the city can sue? That doesn't make sense to me; maybe in Columbus you could manage it, but there are dozens of small cities that don't even have full-time librarians, let alone full-time lawyers. If contingency fee lawyers can't be used by them in a lawsuit, then I don't think they can't sue anyone at all.
10.6.2006 10:02am
Jiffy:
Without seeing the complaint, it's hard to know what the argument is. Nevertheless, I'm aware that there are rules in some states that prohibit public entities from hiring contingency lawyers (but not all outside counsel).
10.6.2006 10:21am
logicnazi (mail) (www):
Does anyone know the state of the science back when Sherman-Williams made the lead paint? Did anyone have reason to believe lead paint was dangerous? Was there a safer alternative.
10.6.2006 10:25am
Grant Gould (mail):
I'm not a lawyer, so can't comment on the law, but as a recent purchaser of a lead-painted house I know some of the science and history.

The state of the science was muddled, but not tremendously so. Childhood lead poisoning was known as early as 1904, and some countries straightaway started banning lead paint for interior painting. In 1943 there was a major public health scare in the US concerning lead-painted cribs and toys -- this even came with modern-style "no proven link" denials from both the lead-mining and the paint industry. However in the 1950s the paint industry voluntarily started reducing the lead content of paint, in 1968 mostly stopped producing lead paint, and in 1978 the use of lead paint was outlawed.

Lead carbonate was used primarily because of the bright white it provided, which made colors clearer, and because of the remarkable durability of the paint. Similar brightness could be obtained from titanium, but this was more expensive for most of the century, and it was not until lead paint stopped being manufactured that it became widespread. Lead paint's remarkable durability and the vast quantities stored even after the 1968 suspension of manufacturing motivated the '78 lead laws. That same durability means that many lead-painted houses are still looking good with the original paint (I just bought one, for instance; the de-leading contractor starts in on it tomorrow...)

A major question in the science was always the issue of dosage and "pica." The amount of lead required to cause serious lead poisoning was thought to be very high and the industry maintained that nobody eats that much lead. It is now known that even small amounts of lead can cause damage, and one of the first symptoms is pica -- a tendency to eat non-food objects. Thus lead poisoning feeds itself, as children who eat lead paint chips become more likely to eat more. This tendency meant that studies tended to understate the problem -- and the more carefully they controlled the study, the more the problem was understated.
10.6.2006 11:27am
JohnAnnArbor:
Sherwin-Williams' logo is kind of disturbing.
10.6.2006 11:52am
Mary Katherine Day-Petrano (mail):
Huh?!???

Lead-based paint ...brain injuries ....

I wonder how many equestrians have gotten brain damage from all those horse jumps used in American horse shows and riding academies painted with lead-based Sherwin Williams paint?
10.6.2006 12:19pm
JackH (mail):
I don't know anything about the science of lead poisoning, but I do know a bit about lead paint (architect by profession). It was widely used because it adheres extremely well to wood and it acts as a preservative. Mold and mildew do not grow on white lead paint. Termites will not eat through it. Construction Specs from the 1850's call for white lead extensively. In fact, porch flooring was commonly laid with all the joints wet with lead paint, which is why you find old porch floors intact and modern ones rotting away. It was also used as the the primer in early Renaissance panel painting--think Van Eyck and Duccio who both painted on wooden panels. If you look you will see the backs of the panels are pretty worm-ridden, but the fronts are intact. It's advantages contributed to its widespread use.
10.6.2006 12:20pm
therut:
So it is because of lead paint that kids would eat paste in school?
10.6.2006 12:29pm
lee (mail):
Hey Grant, a deleading contractor? Really, just what do they do? Sand off the old paint and collect it for safe disposal?
10.6.2006 1:21pm
Sigivald (mail):
Sarah: Well, there's an alterative to both contingency fee lawyers and them being full-time City employees all year round.

The city could simply pay them their hourly rate while they work on the case, as I imagine is fairly normal when an entity hires a lawyer for a serious case.

The legal theory for challenging the use of contingency-fee lawyers will be interesting to see, though.
10.6.2006 1:30pm
Mr L:
The city could simply pay them their hourly rate while they work on the case, as I imagine is fairly normal when an entity hires a lawyer for a serious case.

Of course, then they'd have to justify why they're spending all that money on a case of dubious merit, especially if they lost. There's also the corruption angle -- a lot of the state tobacco lawsuit contigency-fee players donated nice fat chunks of their winnings to supportive political candidates; you can't siphon off those dollars if they go directly to the state.
10.6.2006 1:43pm
Roger Schlafly (www):
If in fact Sherwin-Williams owes many millions of dollars to these cities, then that money belongs to the people and it is up to the people of those cities and their legislators to decide how the money is spent. There are usually lots of procedures that must be followed before the govt can spend millions of dollars to some private firm.

I don't think that the govt should ever be filing contingency lawsuits. It violates good accountability procedures and it encourages wasteful lawsuits.
10.6.2006 1:50pm
logicnazi (mail) (www):
Grant Gould,

Thanks for the info. So I guess the question is all about the amount of lead Sherwin-Williams was using in the paint and the understanding at the time of the amount of lead needed to cause damage.
10.6.2006 2:33pm
Tim (mail):
I would think that a contingency-fee lawyer could have a conflict of interest in the amount of damages and the fee structure of any possible settlement. This is a case whre the state is taking some of the risks (legal costs) from itself and putting it on an outside entity (the fee based lawyers).
10.6.2006 3:27pm
hey (mail):
For the various reasons stated above, governments should never be able to use contingency fee arrangements with lawyers. The government has such overwhelming power and resources that it does not need the leverage provided by contingency fees. Further, it has very serious responsibilities to its citizens that are corroded if not irrevocable damaged by a contingency fee arrangement. The government should not be using the half assed guesses (birth trauma causes cerebral palsy) that gets far too many people into positions of political power. They lie enough anyways, why give further incentive to lie in court?
10.6.2006 4:28pm
abayrat:
I followed the Rhode Island Lead Paint trial via Jane Genova live blog, and have a few items that was brought out at the trial, which is under appeal.
The only way lead paint causes a problem is in homes that have not been maintained and the paint is peeling.
There are other sources of lead in our enviorment including lead pipes used for water and lead found on the ground from cars using lead gasoline.


Grant Gould, you are correct the some doctors were talking about lead problems in children as early as 1904 but no one could pin point what was causing the problem according to some of the documents presented at the trial.

The final point in in referance to Roger Schlafly statemnet of the cost of fixing the problem. The AG of Rohode Isand is asking for between $1.37 billion and $3.74 billion to completely remove all the lead paint from about 250,000 homes.

I am still not sure how you can hold a company responsible for using a legal product in the past the today should be considered a public nuisance.
10.6.2006 4:57pm
Gaius Obvious (mail):
Do children actually eat lead chips? I thought that was proven to be an urban legend -- just somone's first thought as to how the lead would enter children's bodies. Isn't it more a case of breathing in the microdust in the air that is shed from the surface of the paint as it ages?
10.6.2006 5:10pm
Le Messureir (mail):
Roger Schlafly


I don't think that the govt should ever be filing contingency lawsuits. It violates good accountability procedures and it encourages wasteful lawsuits.



Also, I've never heard of a municipality being able to enter into a large contract without some sort of bidding process. How would one bid a contingent fee? Lowest percentage wins the bid? Hmmmm. That doesn't square with the tort lawyers' mantra to "get rich on the misery of others" very well.
10.6.2006 5:13pm
another anonVCfan:
Gaius,

I've seen an x-ray of a child's GI tract filled with white specks (lead paint chips) somewhere on the Internet, so I'm sure that they do. Isn't lead supposed to have a vaguely sweet flavor? I've also heard stories about kids sucking on lead soldiers (before they were replaced by green plastic army men).
10.6.2006 5:40pm
abayrat:
Gaius,

That is not an urban legend, there is a medical term for children the eat things other than food it has slipped my mind. I will assume I am a lot older then you, so you would not remember tv ads telling kids not to eat paint. This ocurred in the earlier 70's on the NYC tv stations and funded by the NYC health department.
10.6.2006 5:47pm
Houston Lawyer:
If lead paint was outlawed in the 1970s, shouldn't the statute of limitations have run by now?

I believe the former Texas Attorney General went to jail for lying about how much work his friend did on the tobacco litigation. When you have billions of dollars in contingency fees being handed out to friends of the incumbent, some type of oversight would appear to be necessary.
10.6.2006 5:56pm
Jiffy:

I would think that a contingency-fee lawyer could have a conflict of interest in the amount of damages and the fee structure of any possible settlement.


How so? One of the benefits of contingency fee arrangements is usually thought to be that it better aligns the interests of client and lawyer than hourly fee arrangements. The former gives the lawyer a direct interest in the amount of the plaintiff's recovery; the latter just gives the lawyer an interest in doing lots of work.


This is a case whre the state is taking some of the risks (legal costs) from itself and putting it on an outside entity (the fee based lawyers).


Isn't that a good thing from the taxpayer's point of view?


There's also the corruption angle -- a lot of the state tobacco lawsuit contigency-fee players donated nice fat chunks of their winnings to supportive political candidates; you can't siphon off those dollars if they go directly to the state.


Money corrupts the political process--there's nothing unique about the corrupting power of contingency money. The real problem in Ohio seems to be corporate litigants with cases pending before the Supreme Court contributing to justices' re-election campaigns. Bet Sherwin Williams starts contributing heavily.


The government has such overwhelming power and resources that it does not need the leverage provided by contingency fees.


Maybe true for the federal government; probably not for the municipality of East Cleveland.


Further, it has very serious responsibilities to its citizens that are corroded if not irrevocable damaged by a contingency fee arrangement.


Government has a very serious responsibility to protect the public fisc, by among other things, recovering funds for its taxpayers. If that's best achieved through a contingency arrangement, how is there "irrevocable damage"?
10.6.2006 10:45pm
Owen Hutchins (mail):

Isn't lead supposed to have a vaguely sweet flavor?


Lead salts are generally quite sweet to the taste. Lead Acetate, for instance, is commanly refered to as "sugar of lead".
10.7.2006 12:10am
Lev:

There are other sources of lead in our enviorment including lead pipes used for water


If memory serves, within the past five or so years it was found that municipal water supply pipes in DC and Boston were lead pipes.
10.7.2006 3:10am
Mary Katherine Day-Petrano (mail):
"Do children actually eat lead chips?"

Horses that are turned out in arenas with lead-based painted horse jumps or fencing eat it, too. If one were inclined to so undertake a study of the subject, I would surmise that numerous wacked-out horse accidents injuring equines and humans are caused as a result of equine ingestion of lead-based paint.
10.7.2006 3:20pm
Howard257 (mail):
Way to go, S-W! We are painting our living room in about two weeks and now I know where to get the paint.
10.9.2006 8:38pm