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Judge Hikes Lead Tab to $1.15B

Friday, January 10, 2014

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A California judge has added $50 million to his earlier $1.1 billion judgment against Sherwin-Williams and other former manufacturers of lead paint in finalizing his ruling this week.

In a 115-page final Statement of Decision issued Tuesday (Jan. 7), Santa Clara Superior Court Judge James P. Kleinberg reaffirmed his Dec. 16 tentative ruling against ConAgra Grocery Products Company LLC, NL Industries Inc., and The Sherwin-Williams Company.

In the landmark case, Kleinberg found that the companies had created a public nuisance by concealing the dangers of lead; pursued a campaign against regulation of lead; and actively promoted lead for use in homes, despite knowing that lead paint was highly toxic.

DutchBoy front DutchBoy back
Wikimedia Commons / Thester11

The National Lead Co. (now NL Industries) was found liable for promoting and selling house paint it knew to be harmful.

Defendants ARCO (Atlantic Richfield Co.) and DuPont were found not liable in the case, which was originally filed in 2000.

In addition, Kleinberg agreed with the cities and counties who brought the action that an additional $50 million was needed for cleanup, on top of the $1.1 billion judgment he had set in his tentative ruling.

The plaintiffs say that their communities have more than five million homes with lead paint. In 2009 alone, they say, 10,875 children in their 10 jurisdictions were poisoned by lead.

Appeal Planned

The defendants have vowed to appeal, denying that they knowingly sold a dangerous product. The defeat is the first for the companies on the issue; similar suits in seven other states were unsuccessful.

Bonnie J. Campbell, a spokeswoman for the paint companies, said the companies had acted lawfully. She called the decision an example of unconstitutional "judicial overreach."

"Beginning with the trial court's refusal to allow a jury to decide the case, as defendants requested, the court has misinterpreted the law," Campbell said in a statement issued after last month's decision.

LeadPaintRemoval
U.S. Army Public Health Command

Millions of U.S. homes still contain lead paint applied decades ago, experts say.

"This decision 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,"

Judge: What the Companies Knew

In each case, the judge found, the company's "conduct was a cause-in-fact of the public nuisance."

Sherwin-Williams, he wrote, sold paint from 1880 until 1972—including 160,000 tons of white lead from 1886 to 1943— "despite knowing the hazards of lead paint at least as early as 1900."

Sherwin-Williams also acquired "a number of companies that sold and promoted paints continaing lead pigments in the Jurisdictions," the ruling said.

Kleinberg wrote, in part:

"SW transported millions of pounds of lead pigment to its warehouses and factories during the first four decades of the 20th century. SW knew at an early date of the occupational risks to factory workers from lead dust exposure and it is a reasonable concluion that it knew or should have known of the hazards in the home."

'Not Persuasive'

Defendant arguments that blamed property owners or downplay lead risks "are not persuasive," the judge wrote.

Judge James Kleinberg David Jacobs
pincusproed.com (left); provided via NY Daily News

Judge James P. Kleinberg (left) criticized the companies' conduct. National lead expert Dr. David E. Jacobs (right) developed the case's abatement plan.

"SW's pride in being the first paint company with chemists on staff is an unintentional admission: with chemists on staff, how can SW say it didn't fully appreciate the hazards posed by lead paint?" he wrote.

"Similarly, SW's evidence of its being the champion of innovation and the do-it-yourselfer with ready-mixed paints is at odds with it continuing to sell lead-based paint well into the 20th century through a large network of dealers."

Kleinberg said the defendants continued to promote lead paint "even though alternatives were available," including a lead-free exterior house paint made by Sherwin-Williams and another paint made by DuPont.

ARCO, the judge noted, "left the lead pigment business ... decades before" researchers and the federal Centers for Disease Control and Prevention paid much attention to the issue.

Remediation: Worst First

The monetary judgments will be used to establish a state-run fund "dedicated to abating the public nuisance," the judge wrote. Jurisdictions will apply for grant funds on a specific-needs basis, with the applications reviewed by California's Lead Poisoning Prevention Branch.

Child with lead paint
www.health.hawaii.gov

Remediation projects will be decided on a "worst first" basis. Homes with mulitple citations or children with elevated blood levels will have top priority.

Applications will be evaluated on a "worst first" basis. Top priority will be given to homes with multiple code violations; housing with a "history of repeated, multiple poisonings"; and homes with children who have elevated blood lead levels.

Property owners who enroll in the plan will be screened to see if their property qualifies for inspection and services. Plan officials must also develop a public database of all enrolled properties, their inspections and any services performed.

Exemptions and Requirements

The cleanup plan does not require "full-fledged removal of all lead paint from all surfaces in all homes covered," the ruling noted.

Houses built after 1980, housing slated to be torn down within two years and not occupied by children, institutional group quarters, and properties inspected and documented as free of lead-based paint are exempt.

LeadPaintWindow LeadPaintWall
HUD

Windows, floors and other "friction surfaces" will be a cleanup priority, as will some buildings slated for demolition.

The plan does require:

  • Testing of interior surfaces in covered homes;
  • Replacement, encapsulation or enclosure of lead paint on windows, doors, floors and other "friction surfaces" (those subject to abrasion or friction);
  • Remediation of lead paint hazards in excess of actionable levels on all surfaces through paint stabilization;
  • Dust removal, testing and disposal;
  • Repair of any building deficiencies, such as water leaks, that might compromise the corrective measures; and
  • Educating families and homeowners on lead poisoning prevention and paint stabilization techniques.

Abatement Plan

The abatement plan was developed by Dr. David Jacobs, research director at the National Center for Healthy Housing and an adjunct associate professor at the School of Public Health at the University of Illinois at Chicago.

Jacobs led the U.S. Department of Housing and Urban Development's Lead Hazard Control Program from 1995 to 2004.

"This decision will help to ensure that children in California will not be poisoned from lead paint in their homes and can grow up to be the very best and brightest they can be," said Jacobs.

   

Tagged categories: Coatings manufacturers; Health and safety; Laws and litigation; Lawsuits; Lead; Lead paint abatement; Sherwin-Williams

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