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Who bears the greatest responsibility?
Paint Manufacturers. Clearly, the industries that used this dangerous substance in their products bear the greatest responsibility. The industry most responsible is the paint manufacturers who continued to manufacture lead based paint, even when they knew how dangerous lead based paint was as early as 1900. As said by Senator Jack Reed in Testimony to the Senate on November 2, 1999:
"In contrast to the public funds which have been expended; to date, an industry that has over $30 billion in assets, has yet to make a significant contribution to efforts to address the Problems associated with its Product. Take the State of Maryland for example. Since 1992, the federal government has spent $28.5 million to make Maryland homes lead-safe. The industry's contribution, on the other hand, was $481,900. Mr. Chairman, the magnitude of this problem and the unwillingness of industry to respond has already sparked legal action at the State level. In Rhode Island, Attorney General Sheldon Whitehouse recently filed a 10-count lawsuit against the manufacturers of lead paint and the industry's trade association. The lawsuit documents nearly a century-long record of industry culpability.
"The complaint lays out compelling evidence about the activities of the lead industry showing that it aggressively marketed its product as safe, while knowing fully of its harmful effects. Although the lead industry knew since the early 1900s that lead was hazardous to human health, the evidence suggests that they continued producing and marketing the product well into the 1960s."
Who else can be held financially accountable for the poison?
Federal Disclosure Laws. Fortunately, with the enactment of the Residential Lead-Based Paint Hazard Reduction Act, other parties who it is easier to pinpoint responsibility for warning you of this hazard, can be held responsible for your child's damages. Under this act, most sellers, landlords and real estate brokers who participated in the sale or lease of residential property, can be held liable for your child's injuries and damages unless they complied with the provisions of this law. Further, if remodeling, rehabilitation or restoration of your home was done by anyone who is not a licensed lead abatement contractor, they too can be held liable.
In most cases where there has been a sale or lease of property since December 6, 1996, there exists a substantial probability that some landlord or real estate professional can be held responsible for the full damages of your child. Such damages would include medical bills, treatment, additional care costs associated with your child's disability. Further, if your child has developmental problems associated with this poison, he or she would also be able to recover a very substantial sum for the reduction in his or her ability to earn a living when they reach adulthood. Finally, damages would include pain and suffering for your child, and your loss of society and companionship of the healthy child you had known. While no guarantee of any recovery could ever be estimated, in general, cases with small children and developmental disability, will involve very significant damages.
Real Estate Liability. Sellers, landlords and real estate professionals are only responsible for damages if they failed to comply with the Federal law that requires proper disclosures be made with respect to the existence of lead based paint in the home. Under such law, these parties must provide a written notice to the tenant or purchaser of the hazard of lead based paint, prior to the execution of a lease or real estate purchase contract. This notice also requires that the tenant or purchaser be given a copy of the Federal Lead Based Paint Disclosure pamphlet. If you entered into a lease or purchase agreement after December 6, 1996, and these notice provisions were not complied with, then these parties can be found liable.
Triple Damages and Attorney Fees. In addition, under the Federal law, "any person who knowingly violates the provisions shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual" pursuant to 42 USC section 3545 and 24 CFR section 30. Civil liability includes attorney fees, expert witness fees, and costs. In addition to these civil penalties, failing to comply with disclosure may result in criminal penalties of up to $10,000 per violation.