Paint firms accused of shifting focus on lead poisoning
Industry pointing fingers at city’s pipes, not its product, lawyer says
Mayor Tom Barrett and an attorney for nearly 170 lead-poisoned Milwaukee children are accusing the paint industry of trying to shift the blame to contaminated water in an effort to create a political firestorm over the city’s lead pipes — and avoid tens of millions of dollars in settlements.
Peter Earle, the lawyer suing lead pigment manufacturers in federal court, pointed to a key expert being used by the industry who contends lead-based paint is no longer the primary source of lead exposure in children.
That expert cited news reports and comments from former city Health Commissioner Bevan Baker — but no research data from the U.S. Centers for Disease Control and Prevention — as the basis for his comments. The CDC says lead-based paint and lead-contaminated dust are “the most hazardous sources of lead for children.”
“Sherwin-Williams is trying to create a controversy
about lead in water in Milwaukee,” Earle said. “It appears Sherwin-Williams is attempting to create a political controversy for purposes of furthering its litigational strategy to avoid liability for all the lead paint they sold.”
The city’s lead poisoning prevention programs have faced criticism in recent months, with Baker stepping down early this year amid reports that the department failed to provide services to families of thousands of children who had tested positive for lead — or at least document those efforts.
Troubles also emerged with a city program aimed at reducing lead hazards in homes.
Jones Day, a major law firm representing Sherwin Williams, has recently taken an interest in Milwaukee’s lead pipes and water quality.
An open records request filed in January by a Jones Day attorney sought records from Milwaukee Water Works related to any work on water mains, including repairs and replacements, on more than a dozen city blocks from the years 1989 to 2010. The firm has been filing similar requests with Water Works since May 2016.
Barrett told the Journal Sentinel that paint manufacturers have a financial incentive in trying to shift the focus away from themselves in these lead-poisoning cases.
“The city’s policy for many years now has been putting the focus on the lead paint,” Barrett said.
“Now what has also happened during that period is the lead paint industry has been exposed to many lawsuits. What better way to minimize your exposure in those lawsuits than to try to divert attention and legal liability to a different issue?”
But Antonio F. Dias, one of the lead attorneys for Sherwin-Williams, said his firm is simply gathering information pertaining to the health of Milwaukee’s children.
He said he could not see why anyone would be opposed to such an effort.
“I would think that any public health advocate would want to know more, not less, about potential avenues of exposure,” Dias said.
Dias declined to say what he considered the primary cause of lead poisoning — paint or water — in Wisconsin’s largest city or other communities around the country.
He said: “In the public health context, people probably talk about generalities. When you’re talking about a child’s health, I think it’s important to talk about individual situations.”
Longstanding problem
Like many industrial cities, Milwaukee has had a major lead poisoning problem for decades. City officials contend the most common way children are exposed to lead is through chipping, peeling or cracking lead-based paint in older homes.
When someone is exposed to lead, it can build up in the body — a condition described as lead poisoning or elevated blood lead levels.
Exposure to lead is especially dangerous for children. It can damage the brain and nervous system, slow growth and development, and cause learning and behavioral problems as well as troubles with hearing and speech.
In 2003, nearly 38% of the Milwaukee children 6 and younger who were tested had a blood lead level of more than 5 micrograms per deciliter. That figure had been sliced to a little more than 11% in 2016, a figure that is still three times the national average.
Officials attribute the drop in the percentage of children with lead poisoning to the city’s federally funded programs aimed at eliminating lead paint hazards in older homes.
Health experts acknowledge the city did little to replace lead laterals and to encourage the use of water filters before 2016.
City health officials on Friday told a Common Council committee they believe deteriorating lead paint remains the primary source of lead-poisoning in Milwaukee children.
The issue of lead pipes has been receiving more attention in recent years, due in part to a water crisis in Flint, Mich. Flint’s drinking water became contaminated with lead after the city began drawing its drinking water from the Flint River in an effort to save money.
Concerns over lead pipes in Milwaukee are the focus of the local advocacy group Freshwater For Life Action Coalition (FLAC).
Lead in water has also become a major issue in the federal litigation involving Milwaukee children. Earle brought some of those lawsuits more than a decade ago.
Paint vs. pipes
A witness for the paint industry argued in a deposition last year that lead-based paint was no longer the primary source of lead exposure for Milwaukee children.
“In recent years, 2015, 2016, probably even 2017, the issue of lead exposure to children from drinking water in Milwaukee has been very big news,” said Brian Magee, a Massachusetts-based toxicologist who serves as an expert witness on the risks posed by various chemicals.
“And we have got the health commissioner and various other officials saying, ‘We have a big problem here with water.’ “
He later added, “We used to not worry at all about soil or water, and we are finding now that more and more cases cannot be explained by lead-based paint. ... So the view of childhood lead exposure has become more complicated in Milwaukee, as well as other places.”
Earle acknowledged lead in water is also a concern, and said there is no safe level of lead in the human body.
But he insisted that paint is the primary source of lead poisoning in children. He is suing five lead pigment manufacturers whose products allegedly made the children sick.
“I’m not saying that lead in water is not something that needs to be dealt with,” Earle said. “But it needs to be dealt with as part of a coherent public health strategy that takes into account the proportional threat that that lead constitutes compared to the lead that’s so prevalent in the housing in Milwaukee.”
Dias, the Sherwin-Williams attorney, said he was surprised that Earle was so dismissive of contaminated water as being a source of lead poisoning in children.
“All public health advocates should be interested in pathways for exposure, and water is certainly one that’s been brought up,” Dias said. “And one certainly that ought to be openly discussed.”
Since Earle first went to federal court over this issue, the Republican-controlled Legislature has approved two laws helpful to the paint industry — one in January 2011 and the other in June 2013.
The first measure set stricter standards for expert testimony and burdens of proof, helping to shield paint-makers from liability.
The second, inserted in a budget bill in the middle of the night, made those changes apply to pending court cases.
Lawmakers approved the 2013 provision after a billionaire owner of a lead producer contributed $750,000 to Wisconsin Club for Growth, a political group that provided crucial support to Gov. Scott Walker and Republicans in recall elections.
Despite the increased discussion about lead pipes, Barrett insisted that the focus should remain on the paint.
“The science clearly has established that the real exposure has come through from lead paint,” he said. “And I believe a lot of the dramatic improvements that we have seen in reducing lead exposure in Milwaukee over the past several decades have been attributable to the tens of millions of dollars that we have invested in getting the lead out of the homes.”