Lead paint and torte reform

So, the paint makers won a big time victory today. Yes they lost the suit since they were found liable for the lead contamination, but the judgment did not include putative damages. (This is a victory, trust me!)
I have read books written in late 50’s, about home construction, and let me tell you they have sections on the wonders of lead paint, and cement board with reinforced with asbestos. Why, because at the time they were miracle building materials (I’ll skip asbestos board for now, since that is tangential.) Lead paint prevents wood from rotting, and given how old some of those houses are is a testament to how well it works. They have known lead (Pb) is poisonous since Roman times, but they didn’t ban lead paint till the 70’s. This is about the same time when they found a way to (pressure) treat wood with preservative that wasn’t creosote or lead. This is not an accident; they couldn’t ban lead paint till they replaced it. The paint companies sold a product that any rational person would know wasn’t all that safe. More over they didn’t try and hide what it was by calling it “Wonder Paint” or something fluffy, they called it “White Lead Paint”. But lead paint served a purpose, so people bought it and painted surfaces that were subject to rotting with it (base boards, window sills, clapboards, and in well built home the bottom of the studs and the sill plate). This is the problem, since these areas are where kids can get, and because these areas get wet they are also prone to pealing, if lead paint was a great ceiling paint, there wouldn’t be problem. Should the paint companies be made to pay for the contamination? Probably, after all they knowing made a product that was toxic. But the reason it sold so well was because it was toxic, and that is why I don’t think punitive damages were order. Punitive damages are to punish the defendant for their wrong doing, but the paint companies didn’t act in bad faith or try and deceive people with tricky labels. The paint companies sold what the market demanded, and if people didn’t want lead paint there were several other types of paint available, so the consumer’s choice to use lead paint was a conscious one.

Now what does this have to do with torte reform? Everything! The reason we need torte reform is we have become class action happy. However, torte reform would limit the options of people who have been legitimately wronged. The lead paint case and some of the Vioxx cases are the best torte reform we could hope for, because there was no profit in the winning. The lawyers that do this kind of work do it for a cut of the settlement, and they see dollar signs from billion dollar settlements resulting not from actual damages, but punitive damages. If judges and juries stop handing out huge (punishing) damages, then the profit dries up and lawyers lose interest and the system reforms itself. This means fewer suits that are based on the size of warning label on the box rat poison, since too small a label might not make it clear that the contents are not to be used as baby food. But people who’ve legitimately been wronged, (and are likely to elicit big punitive damages) still can sue and win and the evil company can be still be punished with huge damages, so lawyers will still represent them. This is torte reform we can live with.