The biggest economic development story in NEO this year: East Cleveland litigating over lead

Submitted by Norm Roulet on Fri, 09/29/2006 - 18:00.

If you read REALNEO, you know the huge burden of lead poisoning on our region's children and adults, the community's quality of life, and our education system and economy, and you know that, since May, East Cleveland Mayor Eric Brewer has been planning to work with Motley Rice to bring litigation over lead poisoning to Ohio courts. Today, the Plain Dealer published word the litigation is finally here, as East Cleveland is expected to file suit in Cuyahoga County Common Pleas Court over the public nuisance lead causes in their community, as has been done in 27 other states to date. East Cleveland is the leader bringing such litigation to our state, and it appears other cities and the state of Ohio are preparing to follow suit. I take great pride that I helped advance this development, and I look forward to helping East Cleveland, NEO and all Ohioans win, as a result.

This will be a tough battle - Brewer is truly brave for taking this on, here in lead and litigation central, NEO. The paint industry is being defended in other states and likely here by Cleveland-based legal powerhouse Jones Day, and they have strong support from local media, industry and government... they employ lots of rich and regular people in NEO, have a foundation, and you can be sure all those rich lawyers have donated tons of money to all the judges and politicians around the county, state, country and world. Worse, one of the primary defendants is Cleveland based Sherwin Williams, and they have immense clout here, especially with the media, which earns $1,000,000s a year from their advertising. It is for these reasons the lead crisis gets very little media attention here, which is so critical to raising community awareness that will lead to eliminating the problem. As an excellent recent example of the positive spin the Plain Dealer gives Jones Day under the most grotesque circumstances, look at how they promote Jones Day cancer champion, litigator Grossman, defending tobacco companies against a class action law suit over "light" cigarettes, just this week.

Now that Mayor Brewer of East Cleveland has brought litigation over lead to our community, the media may still try to paint a pretty picture of Jones Day and Sherwin Williams, but they won't be able to ignore the crisis like they have up until now. Just this expansion of community awareness and dialog will help save 1,000s of children from certain lead poisoning, which will have long term positive benefits for our ability to deliver quality educations to 10,000s of school children, and improve our economy over time. Every citizen of NEO and Ohio owe Mayor Brewer a hearty thank you. Here's the luke-warm launch of the PD media cover-up of the issue... watch this issue and the media like a hawk!

Cities turn to courts for lead paint resolution
Friday, September 29, 2006 - Peter Krouse, Plain Dealer Reporter

Cities across the state are considering litigation against the lead pigment industry, including Sherwin-Williams Co. of Cleveland.

And the city of East Cleveland is expected to file suit in Cuyahoga County Common Pleas Court this morning over the presence of lead pigment in homes and buildings, said Michael O'Shea, who is defending the city on a contingency basis along with the powerful Motley Rice law firm.

Motley Rice represents the state of Rhode Island, which won a landmark lead paint verdict against Sherwin-Williams, Millennium Holdings LLC and N.L. Industries Inc. earlier this year. The jury in that case agreed with the state that lead paint is a public nuisance and that the three companies should be required to remedy the situation.

East Cleveland, which according to O'Shea has the highest percentage of lead-poisoned children in the state, will employ a similar legal strategy, he said. "It's little kids who are presumed to be negligent-free under the law who are victims of this," O'Shea said.

At least three other Ohio cities are considering similar actions. The Columbus city attorney recently hired a litigation group, with Motley Rice taking the lead.

Patricia Delaney, a Columbus assistant city attorney, said a decision to file suit has not been made, but added, "I would say it's a strong possibility."

Max Rothal, law director in Akron, said he should make a decision on a lead paint suit next week. He declined to comment further. And in Toledo, Law Director John Madigan said he's likely to file a suit by the end of next week. He said attorneys from Motley Rice and other firms are drawing up a complaint that he will review.

It's not known how many others may jump into the fray. A spokeswoman for Cleveland Mayor Frank Jackson said the city won't comment on potential litigation. A spokesman for Ohio Attorney General Jim Petro said the office is assessing its options.

The use of lead pigment in paint began to decline in the 1930s, but it wasn't outlawed for use in residential homes in the United States until 1978. Children who ingest paint chips or dust containing lead can suffer a variety of ailments.

In Rhode Island, as many as 240,000 homes are believed to have lead paint in them. The judge in the Rhode Island case has not decided on a remedy. It's believed cleanup costs could exceed $1 billion. The defendants have asked the judge to dismiss the verdict, but he has yet to make a ruling. They have said they will appeal to the Rhode Island Supreme Court if necessary.
Sherwin-Williams spokesman Bob Wells declined to comment on the potential suits. The company has vigorously fought previous suits and blames landlords for not properly maintaining their property.

O'Shea said it will take a lot more money to remove lead pigment from East Cleveland than the federal government can provide.

Lead paint litigation has been ongoing in a number of states, but the Rhode Island verdict was the first to go against the industry.

A spokeswoman for the likely defendants in Ohio said Thursday that lawsuits "against companies that long ago made lead pigment or paint are misdirected, ill-advised and counterproductive."

The final resolution of the Rhode Island case is expected to provide some precedent for similar lawsuits in Ohio. Spencer Neth, a law professor at Case Western Reserve University, said the lead defendants in Rhode Island will prevail on appeal because the judge did not apply prior law that requires responsible parties to be directly linked to the harm done to the plaintiff.

Instead, the judge allowed the responsibility to be shared by several companies who marketed paint in the state.

Calls to Motley Rice were not returned.

A contract signed Tuesday between the Columbus city attorney and its lead litigation group, which includes Motley Rice and five other firms, would compensate the group on a contingency basis. The group would get one-third of any financial award, after legal costs are subtracted, if the case goes to trial. It would receive 25 percent of any settlement, again after legal costs are subtracted, reached before trial.

Delaney said the proposal to hire Motley Rice was brought to the Columbus city attorney by John Kennedy, a former Columbus councilman whose law firm, Crabbe Brown & James, is part of lead litigation group, and by Andrew Lipton, a Toledo attorney who also is part of the group.

To reach this Plain Dealer reporter:

pkrouse [at] plaind [dot] com, 216-999-4834

Yes, East Cleveland has filed against Sherwin Williams

In the PD today they confirmed East Cleveland did file suit against Sherwin Williams and other paint companies. Major Brewer is a hero! From the PD Business Diary:

LEAD PAINT SUITS - East Cleveland sues paint makers

The city of East Cleveland filed suit against Sherwin-Williams Co. of Cleveland and at least eight other lead paint companies in Cuyahoga County Common Pleas Court on Friday morning over the presence of lead pigment in homes and buildings. Akron, Columbus and Toledo are considering similar legal action. Michael O'Shea will represent East Cleveland along with the Motley Rice law firm, which helped the state of Rhode Island win a landmark lead paint verdict earlier this year against Sherwin-Williams and two of the companies named in East Cleveland's suit - Millennium Holdings LLC and N.L. Industries Inc.

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Suits Allege Lead Manufacturers Created a Public Nuisance

It is worth reading more about this litigation - in this case by one of the attorneys who filed the Ohio cases for East Cleveland and Toledo:

Suits Filed on Behalf of Several Ohio Cities Allege Lead Manufacturers Created a Public Nuisance

WAYNE, NJ, (September 29, 2006) – Jon L. Gelman, a prominent attorney representing plaintiffs as a result of toxic exposures, along with Motley Rice LLC, one of the nation's largest plaintiffs' litigation firms, today announced that it has filed two lawsuits against members of the lead paint industry on behalf East Cleveland, Ohio and Toledo, Ohio. The suits allege that lead pigment manufacturers, including Atlantic Ritchfield, Sherwin Williams, Millennium Holdings, DuPont, ConAgra, and others, helped to create an environmental hazard and significant public health crisis in the state of Ohio by manufacturing, distributing and promoting lead-based paint products long after they were aware of the significant health dangers associated with these products.

Unfortunately, almost thirty years after the manufacturers were forced by the federal government to stop selling their toxic lead pigment, scores of Ohio citizens continue to be poisoned each year by lead paint that is still present in public and private buildings. This litigation is an effort by the individual cities to ensure the lead pigment manufacturers take responsibility for the pervasive health hazard they have created for the Ohio public, including its children, parents, homeowners, landlords and taxpayers.

According to Jack McConnell, attorney and member at Motley Rice LLC, "We are going to court to hold companies accountable for selling a product they knew would hurt kids. Lead pigment companies have known since the early 1900s that lead in paint hurts kids yet they sold and marketed it for years anyway. Instead of accepting responsibility, they have left children and homeowners, citizens of Ohio, to fend for themselves. It is time that these Defendants become part of the solution instead of part of the problem."

This lawsuit follows on the heels of the historic defeat of the lead industry after trial in Rhode Island earlier this year. In that case, the a jury of Rhode Islanders found that some members of the lead pigment industry created a public nuisance in Rhode Island and ordered the defendants to abate that nuisance. The State of Rhode Island, represented throughout litigation and at trial by Motley Rice, was the first State in the nation to force these defendants to accept responsibility for their actions. Gelman represents several public entities in claims against the lead industry in New Jersey. http://www.judiciary.state.nj.us/mass-tort/leadpaint/a1946-02.pdf

Jon L. Gelman, who practices in Wayne, NJ, wrote Workers’ Compensation Law (West Group 2003), is a contributing member/author of the advisory board of Modern Workers Compensation (West Group 2001) & is a former national Vice-President of the Workplace Injury Litigation Group. Jon L. Gelman, 1450 Valley Road, 1st Floor, P.O. Box 934, Wayne, NJ 07474-0934, Voice: 973.696.7900, Fax: 973.696.7988, e-mail: jon [at] gelmans [dot] com, Internet: www.gelmans.com.

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