A California judge has ordered the release of medical records of thousands of children and adults who had their blood tested for lead to the parties in an ongoing lead paint public nuisance suit.
The Santa Clara Superior Court judge ordered the disclosure in The People of California vs. Atlantic Richfield Company, et. al., according to an announcement from Alameda County, one of the 10 jurisdictions involved in the lawsuit.
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|Hundreds of thousands of medical records of children who had their blood tested for lead will be released to parties in a pending lead paint public nuisance lawsuit in California.|
The defendants are former producers of lead pigment in paint, including Atlantic Richfield Company, ConAgra Grocery Products Company, E.I. DuPont De Nemours and Company, NL Industries Inc., and The Sherwin-Williams Company.
Only limited information from the children’s medical records is to be released to the parties.
The address and health records of people tested may be disclosed, but all names of individuals tested and family members are to remain confidential, the county said.
The court also ordered a public notification process and said individuals and families could file objections to the release of their information.
The public notice is addressed to: “(1) Any person who has or whose children have had a blood test for lead in the counties of Alameda, Los Angeles, Monterey, Santa Clara, San Mateo, Solano, Ventura and San Diego, and the city and county of San Francisco and (2) Any owner of a building in which a person in the building has had a blood test for lead in those jurisdictions.”
More information and instructions are available at www.LeadTestingDisclosure.com. The deadline to object is Aug. 31.
The personal and medical information will be disclosed to attorneys and experts for the defendants as well as those representing the plaintiff. Further, the court has ordered that the information be used solely for the lawsuit and prohibited the parties from trying to determine the identity of, or contacting tested persons and their families, or property owners.
Maricela Foster, acting director of the Alameda County Lead Poisoning Prevention Program, said the plaintiff jurisdictions in the case are “deeply troubled by the court’s decision.”
She added, “We want the public to understand that they have the right to make an objection but at the same time, we are encouraged this case will soon go to trial, which has the potential to reduce substantially the future risk of children being poisoned by lead paint in their own homes.”
The California Department of Health is also opposed to the disclosure, citing confidentiality of the records.
The State Attorney General’s Office filed a petition with the Santa Clara Superior Court to stop the disclosure and order better notice to the affected individuals and their families, Alameda County said.
The counties of Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, and Ventura, and the Cities of Oakland, San Diego, and San Francisco maintain the medical records in their jurisdictions for the California Department of Public Health.
Counsel for the Sherwin-Williams Company Charles H. Moellenberg, Jr. said in an e-mailed statement to D+D News that access to the files was necessary to defend the case against the former manufacturers.
He noted that federal and California state agencies say good maintenance is the “best way to deal with existing lead paint issues.”
He added, “Intact and well-maintained lead paint does not pose a risk. Also, other sources of lead are much more important sources of lead to children in California today.”
That’s why the defendants “sought access to data contained in the state’s Response and Surveillance System for Childhood Lead Exposures database and in the city and county environmental and case files.”
Moellenberg further said that in a ruling in January, Judge James P. Kleinberg found that “fair play” dictated that the paint makers should have access to the database and files in order to defend themselves.
As a result, the database and files will be provided to the defendants.
Moellenberg further maintains that the data will be furnished with strong protections to safeguard privacy, including the removal of all personal information.
10 Plaintiff Counties, Cities
The 10 California counties and cities, acting on behalf of the People of the State of California, brought the suit against the makers of lead-based paint 12 years ago.
After years of activity in the case, the only remaining legal theory for recovery is based on public nuisance. California law defines a nuisance as “[A]nything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ...” (See: Civil Code § 3479).
A public nuisance is one that affects an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage may be unequal for the individuals involved. (See: Civil Code § 3480)
The public entities aim to hold the lead-paint manufacturers responsible for the “toxic lead paint that permeates homes and properties, and seek an order requiring the paint companies to abate the lead,” the county said.
Bay Area Lead
Lead was banned from house paint in the United States in 1978, but 87% of homes in Alameda County, as well as most homes in the Bay Area, still have lead-based paint under the surface layers, the county reported.
“When the paint peels or is disturbed during painting or renovation work, or from normal wear and tear on friction surfaces, the home can become lead-contaminated from fine particles of lead dust. Lead is highly toxic even in very small amounts,” the county said.
The county added: “Lead dust can cause permanent damage to the brain, nervous system and other organs resulting in life-long health and behavioral problems. The only way to know if you or your child has been exposed to lead is to have a blood lead test.”
More than 5,000 children in Alameda County alone are known to have been exposed to dangerous levels of lead over the last 20 years, with many more who still need to be tested, the county said.
Workers, especially painters and renovation contractors, can become exposed to lead during work on pre-1978 buildings. Federal and state law requires anyone disturbing paint in pre-1978 buildings to be trained and use lead-safe work practices.