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Experts Testify in CA Lead Suit

Wednesday, July 31, 2013

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Expert testimony about poisoned children and pricey cleanups has dominated the country’s last public nuisance case against five former makers of lead-based paint.

The California trial, 13 years in the making, began July 15. It is expected to last until the end of August.

The plaintiffs, 10 cities and counties in California, hope to succeed where other jurisdictions have fallen short—make the companies pay for lead-paint abatement in their jurisdictions by proving that the manufacturers created a public nuisance by marketing, promoting and profiting from lead-based paint despite knowing it was toxic to children.

Santa Clara County Courthouse
Superior Court of California Santa Clara County

Ten cities and counties in California want former lead-based paint manufacturers to pay for lead-paint abatement in their jurisdictions. The Santa Clara Superior Court is hearing the case.

Santa Clara Superior Court judge James P. Kleinberg has urged the sides to settle the estimated $1 billion lawsuit, according to a report by Legal Newsline, an Internet-based newswire covering the trial.

“If you’re interested in gambling, go to Reno and Las Vegas,” Kleinberg reportedly said. “If you are interested in being intelligent, you’ll have to settle this case now. This is not Rhode Island and is not Milwaukee.”

Similar public nuisance cases have been unsuccessful in Milwaukee and Rhode Island.

The defendants are former producers of lead pigment in paint: Atlantic Richfield Company, ConAgra Grocery Products Company, E.I. DuPont De Nemours and Company, NL Industries Inc., and The Sherwin-Williams Company.

The paint makers say they never deliberately sold a hazardous product and argue that lead paint no longer presents a significant public health threat in the state of California.

Poisoned Children Testimony

During the trial, the public entity-plaintiffs have called on expert witnesses from Los Angeles and Santa Clara counties to testify regarding lead-poisoned children in those areas.  

About 6,500 children in Los Angeles County have elevated blood lead levels that are of concern, testified Dr. Cyrus Rangan, director of Toxicology and Environmental Assessment for the county's Department of Public Health.

Rangan sees two to 85 cases of lead poisoning each month, Legal Newsline reported.

“The vast majority of time these children are found to be exposed to lead paint, lead chips and lead dust,” he testified.

He said lead-paint chips light up a child’s stomach area, displaying a “Christmas tree of lights.”

Rangan recounted stories of children who were poisoned by lead in recent years. One involved a child who sucked window sills in a home. Rangan said lead-paint dust had been created by the window frames and friction.

County of Marin
County of Marin, CA

An expert has testified that it is not uncommon to find lead-based paint dust in a home that has intact paint.

“It’s not uncommon to find lead-based paint dust in a home that has intact paint,” Rangan testified, according to the report.

Defense attorneys argued that Rangan’s testimony was hearsay and anecdotal without scientific backing, according to Legal Newswire.

Kleinberg reportedly overruled, calling Rangan a “hybrid” expert. His qualifications of a doctor, public health official and consultant make his testimony relevant, although his stories are empirical, the judge said.

During cross examination, Rangan admitted that other sources of lead poisoning existed in the area, for example, in candy from Mexico.

Marty Fenstershieb, the Santa Clara County Department of Public Health Officer and Medical Director, testified that 350 children in Santa Clara County had blood lead levels at a rate of concern, according to the Legal Newsline report.

“Sixty-seven percent of the housing stock in Santa Clara County is pre-1978,” he noted.

In 2009, 10,875 children in the cities and counties prosecuting the case had been poisoned by lead, according to a news release issued by the governments before trial.

Abatement Testimony

The California jurisdiction authorities have long argued that abatement and removal is the best way to combat childhood lead poisoning.

They want the companies to abate the alleged lead paint nuisance in more than five million pre-1979 housing units located in the California jurisdictions.

On Monday (July 29), the plaintiffs called Perry Gottesfeld, an industrial hygienist, to describe the abatement process and related issues, according to Legal Newsline's report.

He referenced testing, warning signs, caution tape, hazardous material jumpsuits, respirators and other containment requirements. He said the construction costs associated with work on a home that has lead-based paint is higher due to these requirements.

CDC
CDC

Window frames that have chipping and peeling paint can be tested for lead by using an XRF machine, according to the Centers for Disease Control and Prevention. One of the experts in the case has testified about the abatement process and costs associated.

Gottesfeld reportedly said that while intermittent controls, such as keeping lead paint intact, could be used, abatement costs less in the long run.

“It comes down to 'pay now or pay later,'” said Gottesfeld, the report noted. “Lead will not disappear, and at some point, people’s home will need to be remodeled or demolished and it will have to be dealt with later.”

“Today, we have thousands of workers in California who are certified, who have supervisors, project monitors, in essence the industry has developed a whole infrastructure to do this work and do it well,” he said.

During cross examination, Gottesfeld fielded questions about his deposition testimony and advocacy for lowering the level of concern of lead blood levels.

Before trial, a representative for the defendants, Bonnie J. Campbell, a former Attorney General of Iowa, said that the governmental bodies trying the case as well as the federal government had determined that lead-based paint, if well maintained and intact, typically poses no public health risk.

“Abating intact lead paint can be dangerous because it disrupts paint that is otherwise posing no risk, and creates lead dust accessible to children,” Campbell said, adding that the remedy sought by the plaintiffs is at odds with “every federal statute, California law and local ordinance applicable to lead.”

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

   

Tagged categories: Health and safety; Laws and litigation; Lawsuits; Lead; Lead; Regulations

Comment from William Talbott, (7/31/2013, 8:53 AM)

Being a grandparent and parent, like most we do not want harm to any child. But to make someone fix houses from over 40 years ago is unreasonable. There are other solutions. One, limit occupancy to adults. Two, provide parenting classes. Whoever allows their children to chew on windows needs parenting orientation. Three, CA needs to be physically responsible. Maybe it is not true but it appears CA is looking to balance their books or divert attention at the expense of others.


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