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How the Paint Industry Escapes Responsibility for Lead Poisoning

California governments team up against pigment makers in court, but the odds are long.

| Thu Aug. 8, 2013 5:00 AM EDT

The government's difficulties in securing lead cleanup money from the industry was presaged by private lawsuits, including a landmark case known as Santiago v. Sherwin-Williams Company. The plaintiff, Monica Santiago, was born in November 1972 and lived until 1978 in a Boston apartment full of lead paint. She was diagnosed with lead poisoning as a one-year-old, after allegedly ingesting paint from the unit's walls. When she was three, Santiago's medical condition dramatically worsened, and she underwent chelation therapy, in which a lead-binding chemical is injected into the bloodstream to help the patient's body excrete the metal.

In 1987, Santiago sued Sherwin-Williams, NL Industries, and others, claiming they caused her lead poisoning, which later led to hyperactivity-attention disorder and motor skills difficulties. She sought $2.5 million in compensatory and punitive damages. In 1992 a federal court in Boston rejected the case. Her appeal also failed.

A 1900 Sherwin-Williams newsletter described lead as a "deadly cumulative poison."

Santiago's attorney, Neil Leifer, had taken her case after discovering documents in the National Archives pointing to the industry's early knowledge of the poisonous nature of lead. Those documents, and others discovered later, have been used against the industry ever since. A Sherwin-Williams newsletter from 1900, for example, described lead as a "deadly cumulative poison."

In 1904, Sherwin-Williams published an article in a company magazine saying that lead was "poisonous in a large degree, both for workmen and for the inhabitants of a house."

And as early as 1912, documents show, National Lead excluded women and children from working with lead because of its known dangers, yet continued to manufacture it for use in homes.

Donald E. Scott, one of the defense lawyers in the California case, points out that these early documents "describe lead-poisoning in workplace settings, like factories, from people consuming very large amounts of lead," rather than household settings. Doctors, he says, spent many decades afterward trying to establish the toxic threshold for lead.

But 1950s letters from the now-defunct Lead Industries Association signaled that industry officials were well aware of dangers of their product at that time. "With us, childhood lead poisoning is common enough to constitute perhaps my major 'headache,'" Manfred Bowditch, health and safety director for the association, wrote in 1955.

Bowditch elaborated on that point in a letter the next year to Felix E. Wormser, assistant secretary for the Department of the Interior, which was responsible for regulating mining and metal industries: "Aside from the kids that are poisoned (and we still don't know how many there are), it's a serious problem from the viewpoint of adverse publicity. The basic solution is to get rid of our slums, but even Uncle Sam can't seem to swing that one. Next in importance is to educate the parents, but most of the cases are in Negro and Puerto Rican families, and how does one tackle that job?"

Lead poisoning "means thousands of items of unfavorable publicity every year," a lead industry executive lamented in 1960.

In 1960, at the Lead Industries Association annual meeting, a report by secretary-treasurer Robert L. Ziegfeld outlined concerns about lead poisoning. "The toxicity of lead poses a problem that other nonferrous industries generally do not have to face. Lead poisoning, or the threat of it, hurts our business in several different ways."

"In the first place," Ziegfeld went on, "it means thousands of items of unfavorable publicity every year. This is particularly true since most cases of lead poisoning today are in children, and anything sad that happens to a child is meat for newspaper editors and is gobbled up by the public. It makes no difference that it is essentially a problem of slums, a public welfare problem. Just the same the publicity hits us where it hurts."

Scott, the industry lawyer, calls the references to slums and minorities, "callous and regrettable." But he adds that some of the same documents show the industry was working hard to help children in the affected communities.

The California plaintiffs will continue to present their case this week. The trial is expected to continue through late August, at least.  

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