• 
• CLASS
• JOBS
• AUTO
• HOMES

Milwaukee loses appeal in lead paint lawsuit

MADISON, Wis. (AP) An appeals court on Tuesday rejected the city of Milwaukee's bid to force a former lead paint manufacturer to pay for the cleanup of 11,000 contaminated properties.

The District 1 Court of Appeals ruled 2-1 the evidence was sufficient to uphold a jury's ruling that NL Industries Inc. does not have to pay the city costs of cleaning up the inner-city homes. The city sought $52.6 million for the program, which spanned 1992 to 2006 and involved replacing old windows.

The Milwaukee County jury ruled last year the widespread presence of lead paint in Milwaukee homes was a public nuisance, but NL Industries did not "intentionally and unreasonably engage in conduct" that caused it and was not negligent.

The city filed an appeal, raising numerous claims of error in the jury instructions, admission of evidence and court procedures. It asked the appeals court to overturn the jury's verdict, saying the company knew for decades that childhood lead paint poisoning was a serious public health problem but continued to sell and promote the product.

The city says that testing in 1998 showed one in five Milwaukee children had lead levels in their blood at or above the federal threshold for poisoning. Lead in the bloodstream, typically caused by ingesting paint dust and chips, can cause neurological damage and learning disabilities, especially in children. Lead paint was banned in 1978.

The appeals court rejected the city's contention that the company knowingly sold a dangerous product, saying dangers associated with lead paint dust were largely unknown at the time.

"We conclude that there is credible evidence in the record to support the jury's conclusion that NL Industries did not know that the public nuisance found by the jury was resulting or was substantially certain to result from its conduct," Judge Patricia Curley wrote in a decision joined by Judge Ralph Adam Fine.

Dissenting Judge Joan Kessler said the city deserves a new trial because of errors in the evidence and jury instructions.

She said one of the most significant was the admission of evidence that the city had received state and federal grants to pay for its lead cleanup and prevention programs. Kessler said that allowed NL Industries to argue the city "was not a worthy plaintiff" and may have influenced the jury's decision not to award damages.

The majority agreed that allowing the evidence was an error but a harmless one, saying nothing supports the conclusion that it affected the jury's findings.

The Dallas-based company and the city did not immediately respond to messages seeking comment on the decision.