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City loses lawsuit against lead paint manufacturers

By AP/KWMU

Jefferson City, MO. – A divided Missouri Supreme Court has ruled against the city of St. Louis in a fight over who should pay to clean up lead paint in homes.

In a 4-3 decision, the Supreme Court upheld a lower court's finding that the city could not proceed with a lawsuit against lead paint makers.

Lead paint has been banned since 1978 because it can cause health problems and developmental disabilities in children. But thousands of older homes still contain it.

The suit sought cleanup costs from several lead paint and lead pigment manufacturers, with Benjamin Moore as the lead defendant.

The question was whether the paint makers could be held responsible, even though the city could not prove they made the particular paint used in a given home.

St. Louis argued that lead paint poses a public health risk and that the companies that sold it in the city should have to help pay to clean it up.

The city filed the suit as a "public nuisance" to calculate damages based upon a company's market share, arguing the city in a nuisance case is not required to identify a particular product to hold companies liable.

But the state's highest court found that court precedent requires the suing party, government entity or not, to identify the maker of a product it claims has caused harm.

"Without product identification, the city can do no more than show that the defendants' lead paint may have been present in the properties where the city claims to have incurred abatement costs," Tuesday's ruling stated.

Judges Laura Denvir Stith, William Ray Price Jr., Stephen Limbaugh Jr. and Mary Russell made up the majority.

The opinion said the state Supreme Court previously determined that market-share liability is "unfair, unworkable, and contrary to Missouri law, as well as unsound public policy." The court noted the actual company that caused harm could get away with no liability, while one with a sliver of the business becomes liable for much more of the problem than it caused.

The court majority said the city's lawsuit was more like a private injury claim to recoup cleanup costs, not a public health matter.

In a dissenting opinion, Chief Justice Michael Wolff said the case is a public nuisance lawsuit, not a personal injury case, so the court precedent the majority ruling cited was not relevant.

Wolff said because lead paint is a public health hazard, the city need not show which company's paint was in which homes, but rather companies that sold lead paint in the city should have to pay their fair share toward cleanup.

"All of the companies that sold lead-based paint in the city of St. Louis contributed to the problem, which is not an individual injury for which the wrongdoer must be identified but rather is a poisonous hazard to which many may have contributed," Wolff wrote.

Judges Richard Teitelman and Ronnie White joined in Wolff's dissent.

The lawsuit was initially filed in 2000, and a Missouri appellate court last fall upheld a trial court judge's ruling against the city.

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