January 28, 2010 | 1
NEW YORK—The inspiring story of Erin Brockovich’s legal battle with Pacific Gas and Electric Company for contaminating drinking water ended with a $333-million settlement to families in Hinkley, Calif., exposed to the company’s hexavalent chromium waste, not to mention blockbuster acclaim for Brockovitch.
But Hollywood endings are the exception in environmental health lawsuits, as David Rosner and Gerald Markowitz know firsthand. In 2005 Rosner, a professor at Columbia University Mailman School of Public Health, and Markowitz, a professor at the John Jay College of Criminal Justice, were expert witnesses in a Rhode Island civil trial charging three makers of lead-based paint with selling the product even though they knew lead was dangerous to children. The pair helped seal "one of the most important public health victories of the past century," wrote The Nation, which would have forced the paint-makers to pay billions in damages. But the state Supreme Court overturned the decision in 2008.
"If that [civil trial] was the high point in our lives, hearing that Supreme Court decision was the low point," said Rosner who, along with Markowitz, gave a talk hosted by Columbia University on January 25 about their experiences in the courtroom and dealing with industry lawyers. Rosner and Markowitz stepped into the legal limelight after they wrote a book, Deceit and Denial: The Deadly Politics of Industrial Pollution (University of California Press, 2003), examining the information the lead industry had—and manipulated—about lead poisoning. "Our documents had to be explained [for] a jury to understand why industry…should be giving money to the thousands of [children] in Rhode Island who are poisoned every year," Rosner said, adding: "This was public health in action."
What killed the case at the state Supreme Court level, according to Markowitz, was that the plaintiffs accused the paint makers, including Sherwin-Williams, of violating a public nuisance law. A public nuisance is any act that prevents someone from using or enjoying their property—dumping trash in your backyard and reducing the value of neighboring homes would be an example. And its violation is easier to prove than liability, which the state’s court said the civil trial should have argued. To prove liability, defendants would have had to show that one type of lead paint on a specific wall led to poisoning.
Rhode Island’s case set a precedent. Rosner said that lawyers in California and Illinois have contacted him for advice on how to argue their cases without using nuisance law. In 2009 Ohio’s attorney general dropped a lawsuit against Sherwin-Williams and nine other lead-paint makers because of the failure of state courts to argue public nuisance, reported Bloomberg News.
The Rhode Island case taught Rosner and Markowitz that the profession of public health needs to be rethought. While the professors received a lesson in jurisprudence, knowledge of the people in the case, rather than the law, needs to be emphasized, according to Markowitz. In its glory days, from the mid-1800s to the early 1900s, public health made strides in sanitation and working conditions. "It’s got to get back to that same mission," Markowitz said. In an article published in the January 2010 issue of the American Journal of Public Health, Rosner and colleagues wrote that public health experts should understand and work with social, economic and political groups instead of merely promoting science.
Despite the loss in Rhode Island, Markowitz said that he would serve on such a trial again in a second. Still, as Rosner pointed out, the team had to be wary of organizations such as the Round Table Group which solicit academic experts to testify on behalf of industrial groups like Monsanto. On the right side of the law, he says that litigation like the lead paint case in Rhode Island can raise awareness about industrial pollutants.
"There is not a community in this nation that does not know about lead poison," Rosner said, adding: "We’re trying to grab at straws and hold our optimism together."
Image courtesy of iStockphoto/jgroup