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Published: Friday, 12/22/2006

Fishing for lead

FRIVOLOUS lawsuits have become a national disgrace. Call it the "hot coffee" syndrome. Fueled by plaintiffs' push for an easy buck and trial lawyers willing to litigate just about any case for a contingency fee, the courts have become the site of fishing expeditions.

That's basically what has happened here in Toledo with the city suing the manufacturers of lead-based paint and insurance companies, joining East Cleveland and Lancaster in trying to recover money to help pay for past and future remediation of lead paint in older buildings.

Akron was among this number until the city had a commendable change of heart, and withdrew its lawsuit for further review. Toledo should take the same course.

The city has incurred costs in cleaning up after lead paint. John Madigan, city law director, points out that while Toledo has for many years enforced codes covering lead-paint abatement, if landlords do not comply the city has used federal and city funds to undertake the lead remediation.

There are ancillary expenses in lead poisoning screening, and public awareness campaigns as well.

Lead paint can be harmful when it flakes off walls of dilapidated houses, for example. So with about 91 percent of Toledo's housing stock built before 1978, when there was a government ban on lead in paint, it's both natural and appropriate that city officials would be concerned about this as a public health issue.

What is not appropriate in our view is going after Sherwin-Williams and others in what looks like a grab for corporate deep pockets. Sherwin-Williams, for example, says it stopped putting lead in interior household paint in the late 1930s. And the industry in 1955 - more than 20 years before federal regulations - agreed to a voluntary standard to take most of the lead out of interior paint.

When companies manufactured the paint it was a legal product. There is no indication of a cover-up at a later time of health concerns, as there was with the tobacco companies, which continue to this day to sell a product that kills.

The city of Toledo distinguishes between the lead paint suit and the lawsuits that dragged Owens Corning into bankruptcy, because the city is pressing this as recovering the cost of abating a nuisance.

But this still has the appearance of a cowboy lawsuit, with an outside firm riding into town, lassoing the city into signing on, and looking for a payout of a hefty percentage of the settlement if successful.

In the interim, the city pays nothing to press the case.

Mr. Madigan says the city is using outside counsel because it does not have the necessary legal expertise in this matter on staff. But surely the point isn't whether it has the expertise to press forward, but whether it should be a party to the case at all.

We think it should not.

Lead-paint lawsuits are not unique to Ohio. Cases have been heard as far away as Rhode Island and Chicago.

In Rhode Island a jury has found that the paint was a public health issue and that paint-makers could be liable for abatement. But a different resolution was arrived at in Chicago, where a lawsuit against paint-makers and other defendants was rejected. The Illinois Court of Appeals upheld that ruling.

It's perfectly understandable that Toledo and other communities would want to seek ways to recoup the funds they expend to clean up lead-paint problems in older, dilapidated housing stock. But paint-makers aren't necessarily the villains here. And the city of Toledo and other plaintiffs should not be treating them as if they were.



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