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Judge Says Lead Paint Makers Must Pay

Wednesday, December 18, 2013

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A California judge has ordered Sherwin-Williams and two other former producers of lead-based paint to pay $1.1 billion to replace or contain lead paint in millions of homes.

The court dismissed claims against Atlantic Richfield Company and DuPont.

The 114-page landmark ruling, filed Monday (Dec. 16), closes one chapter in a public nuisance lawsuit that has been 13 years in the making. However, the parties have 15 days to contest the decision, and the defendants have already announced that they will do so.

For now, though, the 10 city and county plaintiffs, including the cities of San Diego and San Francisco and Los Angeles County, have succeeded where other jurisdictions have fallen short—in making the companies pay for interior lead-paint abatement in their jurisdictions.

white lead
Wikimedia Commons

Defendants in the California lawsuit include NL Industries, which was known as the National Lead Company until 1971. NL Industries sold its Dutch Boy brand to Sherwin-Williams in 1976. Sherwin-Williams is also a defendant in the suit. Both defendants, as well as ConAgra Grocery Products Company, were ordered to pay for lead-paint abatement in 10 California cities and counties.

The manufacturers were found to have “created or assisted in the creation of a public nuisance” by marketing, promoting and profiting from lead-based paint, despite actual or constructive knowledge that the substance was toxic to children, according to Santa Clara Superior Court Judge James P. Kleinberg.

The decision rejected various arguments as unconvincing, including contentions that lead paint no longer presented a significant public health threat and that the defendants lacked knowledge about the hazards at the time of sale.

Improving Children’s Lives

“Consistent with their arguments throughout the trial the Defendants rely on statistics and percentages,” the judge wrote.

“When translated into the lives of children, that is not a persuasive position. The Court is convinced there are thousands of California children in the Jurisdictions whose lives can be improved, if not saved through a lead abatement plan.”

The tentative judgment was entered against defendants ConAgra Grocery Products Company (successor of W.P. Fuller & Co.), NL Industries Inc., and The Sherwin-Williams Company.

ARCO and DuPont

On the other hand, the judge found, the plaintiffs failed to make their case against Atlantic Richfield Co. (ARCO) and DuPont.

“The People’s own experts were unable to make the case that ARCO promoted lead paint in the jurisdictions,” Kleinberg said. “At most ARCO promoted paints containing lead for only two years and that was to the trade, not the general public.”

Court
Superior Court of California Santa Clara County

Filed 13 years ago, the matter came before the Santa Clara Superior Court bench July 15 and ended Aug. 22. The defendants say Monday's ruling was "at odds with California law and judicial decisions across the country."

DuPont’s claim was dismissed in part because its interior residential paint products never contained white lead pigments. Moreover, the company did not sell paint in California until 1924 and never manufactured white lead pigments in the state, the decision said.

“It is telling that DuPont distanced itself from other paint companies by its products that were lead-free and used that quality as a key advertising theme,” the judge noted.

Decision ‘At Odds’

In an e-mailed statement, a spokeswoman for the paint manufacturers, former Iowa Attorney General Bonnie J. Campbell, called the decision “at odds with California law and judicial decisions across the country that have uniformly rejected similar public nuisance claims.”

She said the decision penalized manufacturers for “truthful advertising of lawful products, done at a time when government officials routinely specified those products for use in residential buildings.”

“The decision rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint, and it conflicts with and threatens to upend California's lead poisoning prevention programs, which work,” she said.

Finally, she said, the ruling is “more likely to hurt children than help them, and it will likely disrupt the sale, rental, and market value of all homes and apartments built before 1978.”

Child and suspected lead paint
www.health.hawaii.gov

The court said it was convinced that thousands of children in the jurisdictions were "presently and potentially victimized by" lead.

The defendants plan to file objections with the judge.

“If those are not accepted, we will file a motion for a new trial or mistrial; and if that is rejected, we will appeal the Court’s decision,” Campbell added.

Abatement Order

The order requires the defendants to pay $1.1 billion into a specially designated and restricted abatement fund.

The fund will be administered by the Director of the California Childhood Lead Poisoning Prevention Branch program for the benefit of residents within the 10 jurisdictions.

Los Angeles County will receive up to 55 percent of the fund, or $605 million; Santa Clara and Alameda will receive up to $99 million; San Diego and San Francisco, up to $77 million; San Mateo, up to $55 million; Ventura, up to $44 million; and Monterey and Solana, up to $22 million, according to the distribution schedule.

The interior paint abatement plan will end four years after the date the defendants make total payment.

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

   

Tagged categories: Coating chemistry; DuPont; Formulating; Health and safety; Laws and litigation; Lawsuits; Lead; Lead paint abatement; Sherwin-Williams

Comment from john lienert, (12/18/2013, 8:32 AM)

sherwin-williams got an idiot for a judge


Comment from William Cornelius, (12/18/2013, 8:59 AM)

Found “not guilty” by virtue of being obviously not guilty. Isn’t our justice system incredible? "DuPont’s ... interior residential paint products never contained white lead pigments. Moreover, the company did not sell paint in California until 1924 and never manufactured white lead pigments in the state",


Comment from Thomas Langer, (12/18/2013, 9:37 AM)

It seems that the legal firms are the only ones winning here. The industry should be smarter and assess a 50 cent per gallon lead hazard reduction fee on every gallon of new paint and settle with all the states in the same fashion the tobbacco giants have. Those dollars could be used to address lead problems in the states and eliminate further legal actions. Lead was state of the art once upon a time - admit it get on with business - it doesn't cost the industry all the costs are passed on to consumers - always has been that way always will be that way.


Comment from Jonathan Baker, (12/26/2013, 2:16 PM)

“The order requires the defendants to pay $1.1 billion into a specially designated and restricted abatement fund.” Oh, a fund like the social security trust fund, the federal and state highway trust fund and every other "restricted" fund. My guess is that little of the money will be used for it's intended purpose.


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