Monkeyleg
May 21, 2003, 12:04 AM
Perhaps this is the strategy the gun manufacturers should be taking.
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Paint firms may seek court costs from boy
Tab for 12-year-old plaintiff could hit $150,000
By JAMAAL ABDUL-ALIM
jabdul-alim@journalsentinel.com
Last Updated: May 19, 2003
Several large companies from the lead-paint industry are threatening to collect roughly $150,000 in court costs from a 12-year-old, lead-poisoned Milwaukee boy if he doesn't drop his right to appeal a lawsuit he lost earlier this year.
The boy's attorney calls the move "unconscionable" because it seeks to block his access to the courts, and could wipe out half the settlement the boy won from landlords he successfully sued in the same case.
The industry's attorneys say the costs probably would get paid by one of the boy's law firms, which are bringing similar lead paint suits around the country.
Milwaukee County Circuit Judge Timothy Dugan, who ruled in the companies' favor on the suit itself, is scheduled to hear the litigation costs dispute today.
The industry's defense bill - for such expenses as mailings, copies and phone calls (Wisconsin law allows only $100 recovery per defendant for attorneys' fees) - could eat into the more than $300,000 Steven Thomas won in settlements from two landlords of homes where he was poisoned as a young child.
"They are trying to snatch his nest egg, to either deter an appeal or similar lawsuits from other lead-poisoning victims," said Peter Earle, Steven's Milwaukee attorney.
The money is in an annuity and will be disbursed to Steven over time beginning when he is 18. His attorney worries that the payments will be garnisheed if the costs claim is upheld by Dugan and if a possible appeal fails.
Lawyers for the companies say they won't seek the money if Steven waives his right to appeal the dismissal.
Such an offer is not uncommon among defendants who prevail in civil suits. But to Steven's mother, it sounds like blackmail.
"Steven should not have to pay, because he is a kid, and he's the one who suffered," said Carol Thomas, speaking in her sparsely furnished lower flat on the north side, where bedsheets serve as curtains, and a picture of a black Jesus hangs in the living room.
Cause in dispute
Earle, Steven's Milwaukee attorney, claims lead poisoning has harmed Steven's ability to function and hurt his chances to earn a living as an adult. He cites studies that found lead poisoning can have devastating effects on the brains and functioning of young children.
Lawyers for the companies, however, dispute that lead poisoning caused any academic and behavioral problems Steven may have, saying the problems were caused by "heredity and the chaotic and dangerous household in which he was raised." Specifically, they blame the criminal and violent behavior of older siblings, and the trauma of having seen two older sisters killed in a drive-by shooting.
Jurors never heard the case because Dugan disallowed Earle's attempt to hold the entire industry liable for creating and marketing an inherently dangerous product, when it couldn't be determined which company made the specific products that may have poisoned Steven. In that type of lawsuit, a plaintiff need only show that a company participated in the market; the companies sort out among themselves their various contributions to the risk.
Dugan also stated, however, that the issue was "important enough" that perhaps it should be heard by a higher court.
The defendant companies would prefer that did not happen.
New York attorney Bruce Kelly, writing on their behalf, noted in court filings that the manufacturers are "frequently called upon to defend meritless litigation," at a "very high" cost ultimately borne by public shareholders.
To the extent that recouping those costs in this case "may tend to discourage the commencement of similarly meritless lawsuits by other plaintiffs, that would be a positive result," Kelly wrote.
He also contends that Steven Thomas' current poverty is "beside the point" because the costs would presumably be picked up by Motley Rice, a national plaintiffs law firm involved in this case and many others like it.
"For (the Motley law firm), this would be just a minor incremental expense in a long-term nationwide campaign," lead paint industry lawyers say of the South Carolina-based lawyers group, which won billions in tobacco settlements a few years back.
Earle, however, contends that attorney rules and regulations prohibit plaintiff's counsel from paying costs awarded to defendants when they prevail.
The companies seeking the cost payments are NL Industries Inc., Sherwin-Williams Co., E.I. DuPont de Nemours & Co., Atlantic Richfield Co., American Cyanamid Co., ConAgra Grocery Products Co., and SCM Chemicals.
The expenses are for copies of depositions, postage and phone calls, including $34,366 worth of conference calls. The industry lawyers say the calls were "vitally important."
Earle argues that the costs are excessive, unreasonable and unnecessary, especially since the companies collectively have more than $247 billion in assets, according to federal securities records he filed in the case.
Boy making progress
Steven is currently enrolled in school at a group home in another county.
Though much of Steven's case hinges on the argument that lead poisoning has limited his ability to earn a living, Carol Thomas' motherly instincts won't allow her to write off her son's future.
She is encouraged by a recent report card in which Steven earned a 2.866 on a 4.0 scale, including A's in math and science. She also got a letter saying he made "great strides" at the group home and that "there is no reason he can't complete the program and become a productive member of society."
Still, Carol Thomas says, that doesn't negate the fact that her son - who likes to build speakers and play basketball - was affected by lead poisoning, which is why she believes he is a slower learner, at least academically, than his peers.
"Point-blank, he was lead-poisoned," Carol Thomas says. "He took a drastic loss compared to some children."
Lead paint was banned from use on interior surfaces in 1978, but many homes still have it. Individuals and communities have filed more than 40 lawsuits against lead-paint companies since 1989. All have failed.
In 2001, the City of Milwaukee filed its own lead-paint lawsuit, targeting Madison-based Mautz Paint and NL Industries, a chemical firm that once manufactured lead pigment. The case is pending.
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Moral of the story: tell your kids not to eat paint.
************
Paint firms may seek court costs from boy
Tab for 12-year-old plaintiff could hit $150,000
By JAMAAL ABDUL-ALIM
jabdul-alim@journalsentinel.com
Last Updated: May 19, 2003
Several large companies from the lead-paint industry are threatening to collect roughly $150,000 in court costs from a 12-year-old, lead-poisoned Milwaukee boy if he doesn't drop his right to appeal a lawsuit he lost earlier this year.
The boy's attorney calls the move "unconscionable" because it seeks to block his access to the courts, and could wipe out half the settlement the boy won from landlords he successfully sued in the same case.
The industry's attorneys say the costs probably would get paid by one of the boy's law firms, which are bringing similar lead paint suits around the country.
Milwaukee County Circuit Judge Timothy Dugan, who ruled in the companies' favor on the suit itself, is scheduled to hear the litigation costs dispute today.
The industry's defense bill - for such expenses as mailings, copies and phone calls (Wisconsin law allows only $100 recovery per defendant for attorneys' fees) - could eat into the more than $300,000 Steven Thomas won in settlements from two landlords of homes where he was poisoned as a young child.
"They are trying to snatch his nest egg, to either deter an appeal or similar lawsuits from other lead-poisoning victims," said Peter Earle, Steven's Milwaukee attorney.
The money is in an annuity and will be disbursed to Steven over time beginning when he is 18. His attorney worries that the payments will be garnisheed if the costs claim is upheld by Dugan and if a possible appeal fails.
Lawyers for the companies say they won't seek the money if Steven waives his right to appeal the dismissal.
Such an offer is not uncommon among defendants who prevail in civil suits. But to Steven's mother, it sounds like blackmail.
"Steven should not have to pay, because he is a kid, and he's the one who suffered," said Carol Thomas, speaking in her sparsely furnished lower flat on the north side, where bedsheets serve as curtains, and a picture of a black Jesus hangs in the living room.
Cause in dispute
Earle, Steven's Milwaukee attorney, claims lead poisoning has harmed Steven's ability to function and hurt his chances to earn a living as an adult. He cites studies that found lead poisoning can have devastating effects on the brains and functioning of young children.
Lawyers for the companies, however, dispute that lead poisoning caused any academic and behavioral problems Steven may have, saying the problems were caused by "heredity and the chaotic and dangerous household in which he was raised." Specifically, they blame the criminal and violent behavior of older siblings, and the trauma of having seen two older sisters killed in a drive-by shooting.
Jurors never heard the case because Dugan disallowed Earle's attempt to hold the entire industry liable for creating and marketing an inherently dangerous product, when it couldn't be determined which company made the specific products that may have poisoned Steven. In that type of lawsuit, a plaintiff need only show that a company participated in the market; the companies sort out among themselves their various contributions to the risk.
Dugan also stated, however, that the issue was "important enough" that perhaps it should be heard by a higher court.
The defendant companies would prefer that did not happen.
New York attorney Bruce Kelly, writing on their behalf, noted in court filings that the manufacturers are "frequently called upon to defend meritless litigation," at a "very high" cost ultimately borne by public shareholders.
To the extent that recouping those costs in this case "may tend to discourage the commencement of similarly meritless lawsuits by other plaintiffs, that would be a positive result," Kelly wrote.
He also contends that Steven Thomas' current poverty is "beside the point" because the costs would presumably be picked up by Motley Rice, a national plaintiffs law firm involved in this case and many others like it.
"For (the Motley law firm), this would be just a minor incremental expense in a long-term nationwide campaign," lead paint industry lawyers say of the South Carolina-based lawyers group, which won billions in tobacco settlements a few years back.
Earle, however, contends that attorney rules and regulations prohibit plaintiff's counsel from paying costs awarded to defendants when they prevail.
The companies seeking the cost payments are NL Industries Inc., Sherwin-Williams Co., E.I. DuPont de Nemours & Co., Atlantic Richfield Co., American Cyanamid Co., ConAgra Grocery Products Co., and SCM Chemicals.
The expenses are for copies of depositions, postage and phone calls, including $34,366 worth of conference calls. The industry lawyers say the calls were "vitally important."
Earle argues that the costs are excessive, unreasonable and unnecessary, especially since the companies collectively have more than $247 billion in assets, according to federal securities records he filed in the case.
Boy making progress
Steven is currently enrolled in school at a group home in another county.
Though much of Steven's case hinges on the argument that lead poisoning has limited his ability to earn a living, Carol Thomas' motherly instincts won't allow her to write off her son's future.
She is encouraged by a recent report card in which Steven earned a 2.866 on a 4.0 scale, including A's in math and science. She also got a letter saying he made "great strides" at the group home and that "there is no reason he can't complete the program and become a productive member of society."
Still, Carol Thomas says, that doesn't negate the fact that her son - who likes to build speakers and play basketball - was affected by lead poisoning, which is why she believes he is a slower learner, at least academically, than his peers.
"Point-blank, he was lead-poisoned," Carol Thomas says. "He took a drastic loss compared to some children."
Lead paint was banned from use on interior surfaces in 1978, but many homes still have it. Individuals and communities have filed more than 40 lawsuits against lead-paint companies since 1989. All have failed.
In 2001, the City of Milwaukee filed its own lead-paint lawsuit, targeting Madison-based Mautz Paint and NL Industries, a chemical firm that once manufactured lead pigment. The case is pending.
*************************
Moral of the story: tell your kids not to eat paint.