Ohio Attorney General Sues Lead Paint Manufacturers
Public Nuisance Theory Basis for Litigation

Anne Marie Sferra
Maria J. Armstrong
Christopher N. Slagle
Bricker & Eckler LLP
April 2007

On April 2, 2007, Ohio Attorney General Marc Dann named ten paint manufacturers and “John Doe Corporations” as defendants in a public nuisance lawsuit filed in the Franklin County Court of Common Pleas. The public nuisance lawsuit relates to the companies prior manufacture, sale, marketing, supply, and distribution of lead paint.

In his suit on behalf of the State of Ohio, Attorney General Dann claims that the paint manufacturers, including Sherwin Williams, DuPont, American Cyanmid, Atlantic Richfield, ConAgra, Lyondell Chemical, Millennium Holdings, and others, knew or should have know in the early 1900’s that lead was hazardous to humans and should have halted its production. This case has been assigned to Judge John Bender.

Among other things, Attorney General Dann’s lawsuit seeks the following:

• an award of compensatory and punitive damages;

• an order requiring the Defendants to detect and abate all lead paint in Ohio;

• an order requiring Defendants to fund a public education campaign relating to the dangers posed by lead;

• an order requiring the Defendants to fund medical monitoring and preventative lead screening programs in Ohio; and

• an award of attorney fees.

Attorney General Dann has asked that the State’s lawsuit be consolidated with litigation previously filed by the City of Columbus, which sued paint manufacturers in late 2006 in City of Columbus v. Sherwin-Williams (Franklin County Common Pleas Court, Case No.: 06-CV-016480). The City of Columbus action is currently pending before Judge Eric S. Brown. Under local court rules, if the motion to consolidate is granted, Attorney General Dann’s suit will be re-assigned to Judge Brown.

Attorney General Dann also filed a motion to stay the Franklin County action until the Ohio Supreme Court decides State ex rel. The Ohio General Assembly v. Brunner, Case No. 2007-0209, currently pending before the Ohio Supreme Court. In Brunner, the Ohio General Assembly, Bill Harris (President of the Ohio Senate), and John Husted (Speaker of the Ohio House of Representatives) filed a mandamus action against the Ohio Secretary of State following the veto of Senate Bill 117. This action alleges that the Secretary had no authority to return Senate Bill 117 to newly-elected Governor Ted Strickland, allowing him to veto the legislation, after it had been filed by Governor Taft and became law.

S.B. 117 clarified that all common law product liability claims, including those characterized as public nuisance claims, have been abrogated by Ohio’s Product Liability Act, as amended by S.B. 80.