The Legacy of Lead: Pervasive Poisoning, Suspect Science and the Industry Effort to Escape Liability

by Wendy Johnson

Five brown plastic medicine bottles and a weekly pill organizer sit next to a vase of blue silk roses on Angela Goodman's dining room table. The prescriptions all belong to Simantha, her 10-year-old daughter. Although she takes seven pills a day ó anti-psychotics, sedatives, medicines for hyperactivity and lithium ó they do not entirely calm her violent outbursts and uncontrollable tantrums.

Just yesterday, Angela says, her daughter threw herself against a wall, talked about jumping out the window of their second story apartment, and tried to grab a knife from the kitchen counter.

Simantha's behavioral problems began 6 years ago, just after blood tests showed she was being poisoned by lead dust from old paint in her home.

When Simantha was four, her blood lead was tested as part of a required physical for Head Start pre-school. It was 66 micro-grams per deciliter, over six times the level currently considered acceptable.

"There were no signs," Angela says, "I didn't understand it at first, I thought she was sick and would get better. They don't tell you it's just the beginning." The results were a shock to Angela, especially since Simantha had a normal lead test at age one and appeared to be in good health and developing normally.

Shortly after Simantha's first birthday, the family moved to a small two bedroom house on a quiet side street, a quaint home built in the early 1900s. In this Cleveland, Ohio neighborhood, more than a quarter of the children tested have elevated blood lead levels.

Angela had no idea of the toxin lurking in her home's window wells and on its old gray porch. "I didn't know the paint broke down into dust. People don't understand that the dust on your table can poison your child." When Simantha was two, her mother noticed she was not as talkative as other children. By age four, it was clear that she was having problems learning to count and read.

Today, the medicines are doing their job. Simantha is eager to show a new friend around her room, especially the photographs of her recent horseback riding lessons offered through a special education program for severely learning disabled children. When asked about her experience with doctors and hospitals, she casually mentions that she's "had 10 or 12 admissions."

Simantha Goodman wants to be a teacher. "I'd like to teach little kids to read," she says, "When I learn how to read, I want to teach other kids." Despite years of individualized classes, different medication combinations, and specialized behavioral health care, Simantha is just learning to spell and reads at a kindergarten level. Her sister, just one year older, is an honor's student at a nearby public school.

Simantha's story, unfortunately, is not unique. According to a 1997 EPA analysis, every year 9,000 children in the United States are poisoned by lead paint so severely that they are destined to have IQs below 70. The total number of children poisoned by lead paint since its introduction in the early part of the 1900s is in the tens of millions. Although it was banned in 1978, the durable toxin lingers on the windows, walls and porches of older houses and is embedded in the soil around foundations.

Emerging research suggests the problem may be more troubling than previously realized. Scientists are increasingly concluding that tolerances for blood lead levels should be set lower than previously thought. In other words, lead takes a toll on child development in doses much lower than previously believed.

This is a conclusion that the lead and paint industries do not want scientists and ó even more importantly ó government regulators to reach. Public health advocates charge the industry-friendly Bush administration is stacking government science advisory committees to protect lead businesses ó at the expense of children like Simantha.

Underlying the industry's concerns is not just current regulatory disputes, but lawsuits demanding the industry pay lead poisoning victims and pay for the costs of remedying its past harms. Filed by states and locales as well as private parties, these still early-phase lawsuits borrow from the theory used in state litigation against the tobacco companies. They argue that the industry long knew about the harmful health impacts of lead but hid the information. Now, the suits say, the industry should pay the enormous costs of removing lead paint still in homes across the United States.

The Continuing Problem

Many public health experts consider lead poisoning to be the biggest preventable environmental threat to children's health in the United States. There are currently 24 million dwellings with lead hazards in the United States. Children live in 4 million of them. Those children serve as lead detection devices; the primary method of finding lead in homes is through the blood testing of children after they are poisoned.

As new housing stock replaces old, fewer children every year are affected, but the federal government's Centers for Disease Control and Prevention (CDC) still estimates that about a million children under six have more lead in their bloodstreams than the level currently deemed acceptable, 10 micrograms per deciliter (mcg/dl). A few, like Simantha, with the highest lead loads, will have brain damage, severe learning disabilities, behavior and developmental problems, even convulsions. The vast majority will suffer more subtle, long-term effects.

Disproportionately at risk are poor and minority children, who are most likely to live in older, deteriorated homes concentrated in urban centers. Fully 22 percent of African-American children who live in homes built before 1946 have elevated lead levels.

In light of emerging research, the CDC has consistently lowered the definition of lead poisoning, from 60mcg/dl before 1970 to 25 mcg/dl, and finally down to 10 mcg/dl in 1991.

Recent studies on levels even lower than the current threshold have found significant effects on intelligence. Up to 10 IQ points might be lost before a child is recognized as "lead poisoned."

Scientists are just starting to understand the phenomenon known as "subclinical lead poisoning." In recent years, studies have linked relatively low, asymptomatic levels of lead poisoning with lowered intelligence, juvenile delinquency, violent behavior, poor school performance, hearing problems and growth retardation.

Lead can stay in the body for years, stored in teeth and bones. Some scientists have linked low birth weights and pregnancy problems with the lead leaching out of the bones of young mothers who were themselves exposed as children.

The findings have led some researchers, like Dr. Bruce Lanphear of the University of Cincinnati, to conclude that the CDC should consider another reduction in the definition of lead poisoning.

"Knowing the data, published and unpublished, it is clear to me that the recommended level will be lowered," Lanphear says.

No Consent To Advice

Lanphear's message is one the industry does not want to hear, and its allies in the Bush administration ó where former lead lobbyist for National Lead (now known as NL Industries) Gail Norton is Secretary of the Interior ó have worked to deny him a platform from which his recommendations may lead to policy changes.

Last year, the CDC proposed Lanphear for inclusion on its Advisory Committee on Childhood Lead Poisoning Prevention. The committee historically has been staffed by independent physicians and scientist experts in lead exposure, and is charged with reviewing research and recommending policy to the CDC. Lanphear is one of few investigators who has studied both the health effects of lead in children, and the relationship between lead dust levels and children's blood lead load.

The CDC sends its list of proposed committee nominees to the Secretary of Health and Human Services, who routinely accepts the recommendations, appointing the CDC nominees to the advisory committee. Last year, the process worked differently. Secretary of Health and Human Services Tommy Thompson rejected the CDC's picks ó including the proposed reappointment of one member with a long history of published, peer-reviewed work on lead poisoning. In their place, he appointed researchers linked to the lead industry.

According to a report released by Representative Edward Markey, D-Massachusetts, none of Thompson's choices believe that the CDC's definition of lead poisoning should be lowered. Some are on record criticizing the current definition as too strict.

In place of Lanphear and two other experienced academic clinicians and researchers, Thompson nominated William Banner, Joyce Tsuji, Kimberley Thompson and Sergio Piomelli.

Dr. Banner was an expert witness for the lead industry in its defense against a lawsuit brought by the Rhode Island Attorney General. In his testimony, he stated that he did not believe lead had any effect on children until it reached levels up to 10 times what the CDC currently considers safe. Banner has not published a single research paper on lead poisoning.

Tsuji is a scientist for Exponent, a scientific consulting firm whose clients include a Washington, D.C. firm representing the lead industry and other corporations under EPA investigation. Dr. Thompson works with the heavily industry-funded Center for Risk Analysis at Harvard University. Piomelli is on record stating that there is "no epidemic of lead poisoning in the U.S. today Ö some people are trying to create an epidemic by decree."

"What's remarkable about the CDC Advisory Committee is just how blatant they were at putting up people out of the mainstream of science who clearly have a vested interest with industry," says Eileen Quinn, deputy director of the Washington, D.C.-based Alliance to End Childhood Lead Poisoning.

An administrator in the CDC office says that Thompson had consulted with lead industry representatives before making the appointments.

But Bruce Pierce, spokesperson for the Department of Health and Human Services, denies that any meeting took place between industry representatives and HHS staff or the secretary about the lead committee appointments.

Asked why Secretary Thompson did not approve the CDC recommendations for the committee, he says, "This administration is not rubber-stamping appointments. The secretary is charged by Congress to make these appointments."

The goal of the appointments, according to Pierce, was to broaden the perspective of the committee. "If you only get people who've done research," he says, "you only get one perspective."

Asked to speculate why the industry might be interested in the definition of childhood lead poisoning, Lanphear cites litigation against the former manufacturers of lead-based paint. A flurry of lawsuits, none yet successfully litigated or settled for the plaintiffs, have been filed against the former lead paint manufacturing industry in recent years. "To the extent the lead levels are lowered," Lanphear says, "you're talking about a multiplicative effect on the number of children affected." Lanphear points to the industry's enormous potential liability, for example, "if you estimate that each IQ point is worth $10,000."

Justice for a Poisonous History?

Emboldened by the success of tobacco and environmental clean-up litigation, states and cities have tried a number of litigation strategies to hold the industry accountable. Forty cases so far have failed to yield a verdict against the industry, but the pattern in this kind of case is for a long series of failures before a win breaks the dam.

The state of Rhode Island's case has proceeded furthest so far. Rhode Island did extensive discovery to uncover a raft of lead industry memos and documents showing what the industry knew about the hazards of lead, and when it knew it.

Rhode Island filed its case in 1999, against the Lead Industries Association (LIA), American Cyanamid, Atlantic Richfield, DuPont, the paint company Glidden, NL Industries and Sherwin Williams, among others. The state complaint alleges, "The manufacturing defendants also had knowledge and obtained knowledge of lead's hazardous properties through the LIA, which was organized in 1928." The suit specifically charges:

• By 1931, each of the manufacturing defendants (except DuPont) was a member of the LIA.
• By 1930, the LIA had internally acknowledged the dangers of lead on children's toys and furniture.
• By 1933, the LIA internally suggested that its members consider discontinuing the use of lead on children's toys and furniture. Nevertheless, the Defendants continued to market and/or promote lead for use on interiors, furniture, schools, hospitals, and areas that were readily accessible to children.
• In 1952, the LIA published a treatise entitled "Lead in Modern Industry" in which the LIA acknowledged that interior and exterior lead-containing paints create a risk of childhood lead poisoning.

The state charges the manufacturers with creating a public nuisance, conspiring to conceal information from regulators and the public, and acting negligently. It seeks compensation both for damages to public health, and the cost of removing lead paint from buildings.

Rhode Island's case ended in a mistrial last fall, but a new attorney general, Patrick Lynch, has pledged to refile this spring.

Perhaps the other most promising case to lead prevention advocates is a suit filed by the city of Chicago, in September 2002. Chicago does a good job of tracking childhood lead poisoning and linking cases to lead in houses, which Amy Zimmerman, with the Chicago Lawyer's Committee for Civil Rights Under the Law, believes will strengthen the city's case.

Although none of the lawsuits so far have forced the industry to pay damages, through the discovery process they have revealed a pattern of cover-up, denial and industry influence over lead research reaching back to the early 1900s.

The Rhode Island complaint cites a 1904 Sherwin-Williams internal document that states: "lead is poisonous in a large degree, both for workmen and for the inhabitants of a house painted with white lead colors."

In their book, Deceit and Denial, public health scholars Gerald Markowitz and David Rosner rely heavily on documents collected through discovery proceedings to make the case that the danger of lead paint to children was well known to the industry by the 1920s.

From the 1920s through the 1940s, however, the Lead Industries Association systematically fought regulation seeking to restrict the use of lead-based paints.

By 1943, lead poisoning was becoming so widespread that a major pediatric textbook concluded, "lead poisoning is one of the common and most serious forms of intoxication recognized in childhood."

Still, it was not until 1978 that a lead paint ban was finally enacted, largely because industry-funded researchers continued to insist that lead was relatively safe through the 1960s.

Robert Kehoe, whose University of Cincinnati lab was heavily industry funded, was long the most prominent authority on lead poisoning. Chris Warren, author of Brush with Death: A Social History of Lead Poisoning, notes that Kehoe was so dominant in the field because he was one of few researchers with sufficient funds to conduct large studies. As late as 1966, Kehoe testified at a Senate committee that certain amounts of lead were "normal" in the human body.

The lead industry continues to see things differently. Companies involved in lead litigation maintain a website explaining that the lawsuits are "without merit," and saying that, "as these companies learned over time about health concerns associated with lead paint, they took steps to protect their workers, painters and the public at large."

Obligations to abate lead paint hazards in housing rests with property owners, they say, not the industry. As testimony to their efforts to help resolve the problem, they cite voluntary paint give away and remediation projects that the paint industry has recently begun promoting in cities like Detroit.

Lead prevention advocate Ellen Quinn is skeptical of the industry's effort to paint itself clean. "The only reason they're coming to the table is because of the litigation," she says. "They're investing a great deal in lobbying, communications and defense lawyers. They're investing a lot more in those three things than in the solutions they're offering to city governments."

The federal Department of Housing and Urban Development (HUD) has estimated that the total cost to remove all lead hazards from residential dwellings in the United States would be approximately $500 billion. The bulk of that expense will fall to municipal governments, homeowners and federal programs.

The costs of ignoring the problem are even greater. Researchers at Mt. Sinai Medical Center calculate the annual health costs from lead poisoning at about $43 billion per year.

As more evidence reveals the ripple effects of lead poisoning on the ability of children to think and learn, the costs ó in dollars and diminished lives ó continue to escalate.

Wendy Johnson is a family physician in Cleveland, Ohio.