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High-Stakes Verdict Looms in Paint Case

Thursday, September 26, 2013

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Attorneys for five former producers of lead-based paint and 10 California jurisdictions have rested their cases to end a landmark trial 13 years in the making and potentially worth $2 billion.

Closing arguments in the marathon case were delivered Monday (Sept. 23), and the closely watched litigation is now in the hands of Santa Clara County Judge James Kleinberg.

The California government entities accuse the paint manufacturers of causing a “public nuisance” by selling lead paint for decades before the government banned the metal’s use in residential paint in 1978.

The case—based on the same legal theory that has failed in five other states—was filed in 2000 and went to trial July 15, 2013.

lead based paint
U.S. Environmental Protection Agency

The plaintiffs, including Los Angeles County, San Diego and San Francisco, want former makers of lead-based paint to pay to remove lead-paint hazards from tens of thousands of homes.

Kleinberg, who has presided over the bench trial, is expected to issue his ruling before the end of the year.

No matter what the ruling says, it will most likely be appealed.

Public Nuisance Argument

In closing arguments, the plaintiffs, including Los Angeles County, San Diego and San Francisco, urged the judge to find the companies liable for creating a public nuisance and threatening California children’s health.

The governments alleged that the industry was aware of the health implications of lead-based paint decades ago, ignored those risks, and promoted the product's use to create a hazard that persists today.

For example, the court heard from experts that about 6,500 children in Los Angeles County suffer from elevated blood levels that are of concern. (For more information on expert testimony in the case, see "Experts Testify in CA Lead Suit.")

Conference of Physicians

Joe Cotchett, an attorney representing the cities and counties, told the judge that the plaintiffs had met the “substantial and reasonable” standard of proof needed in the case, according to reports on the trial.

Specifically, he pointed to a 1937 Lead Industry Association conference document titled “Lead Poisoning, Report of Conference Physicians and Surgeons of Member Companies.” The event was allegedly attended by doctors employed by each of the paint companies involved.

child and paint
HUD

Lead exposure has been linked to neurological damage in children, decreasing IQ, and other serious health concerns.

The doctors were said to have been directed not to tell anyone about the conference and not to take notes.

Paint Makers Respond

The defendants have refuted the document from the conference, saying that no secrets were discussed and that public health officials also attended the event.  

“Cotchett’s emphasis on the document ‘shows how little, if any, evidence they have concerning the knowledge of risks in lead paint in the early half of the last century,’” Tony Dia, an attorney for defendant Sherwin-Williams, told the Insurance Journal.

The governments are seeking a court order to require the paint makers to abate lead-paint hazards from tens of thousands of homes throughout the jurisdictions involved—a cleanup that experts estimate would cost between $1 billion and $2 billion.

The plaintiffs (representing the People of California) are Santa Clara County, Alameda County, the City of Oakland, the City and County of San Francisco, the City of San Diego, Los Angeles County, Monterey County, San Mateo County, Solano County, and Ventura County.

'Hindsight Cannot Be Used to Prove this Case'

Attorneys for the paint makers—Atlantic Richfield Company, ConAgra Grocery Products Company, E.I. DuPont De Nemours and Company, NL Industries Inc., and The Sherwin-Williams Company—countered in closing arguments that the plaintiffs’ case had, like others' before, missed the mark.

“The California Court of Appeal (6th District) allowed the plaintiffs' claim to go forward solely on the theory that defendants had promoted the use of white lead pigments in paint on homes long ago ‘with knowledge of the hazard that such use would create,’” a spokeswoman for the defendants said in an e-mailed statement.

“Under that court ruling, hindsight cannot be used to prove this case,” said Bonnie J. Campbell, the former Attorney General of Iowa.

“The plaintiffs’ case for present-day ‘public nuisance’ rests on scientific knowledge that changed over the years and was not known or knowable when white lead pigment was marketed for use in homes.

“The fact is that, at every turn, the companies did the right thing—from funding ‘no strings attached’ research to a voluntary end of interior lead paint decades before the federal government required it,” she said.

Lead Levels Declined

The paint makers also argued that blood lead levels in California children have declined “dramatically” due to the state’s Childhood Lead Poisoning Prevention Program (CLPP).

interior
National Park Service

The defendants have claimed that scientific knowledge has changed over the years and that lead hazards today were not known or knowable when white lead pigment was marketed for use in homes.

That program, funded in part by the paint manufacturers, is considered a “public health success story,” according to Campbell.

Still, the plaintiffs hope to end the former lead-paint producers' string of victories with Kleinberg’s ruling in People of California v. Atlantic Richfield Co. et. Al.,, which is expected in 90 days.

Similar lawsuits, based on the public nuisance theory, have failed in Rhode Island, Illinois, Missouri, New Jersey and Wisconsin.

Documents filed electronically in the California case may be viewed via the Superior Court of California, County of Santa Clara website.

   

Tagged categories: Coating chemistry; Coatings manufacturers; Health and safety; Lawsuits; Lead; Lead paint abatement; Pigments

Comment from Steve Seidman, (9/26/2013, 8:50 AM)

If you go after anyone, it should be the tobacco industry.


Comment from Tom Schwerdt, (9/30/2013, 10:50 AM)

They went after Tobacco in the '90s. In 1998, Big Tobacco agreed to a $206,000,000,000 payout to the states, etc.


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