Calif. lead paint judge urges sides to settle this week

SAN JOSE, Calif. (Legal Newsline) -- The judge presiding over an estimated $1 billion lawsuit against the manufacturers of lead paints and pigments urged both parties to "settle" during trial this week.

"If you're interested in gambling go to Reno and Las Vegas," Santa Clara County Superior Court Judge James P. Kleinberg 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, go back and reread the 6th District's opinion again."

The judge was referring to landmark lead paint rulings against government entities in Milwaukee and Rhode Island.

In City of Milwaukee v. NL Industries, Inc., et al., Milwaukee sought $160 million in damages stemming from the presence of lead paint in private residences. In 2007, NL secured a complete defense verdict. In 2008, Wisconsin Court of Appeals issued its opinion affirming the verdict, saying "the evidence reflected that the nuisance was unknown to NL Industries until after its conduct had ceased."

In Rhode Island v. LIA, et al., there was an appeal of the only jury verdict against former lead pigment manufacturers. After that verdict, Rhode Island sought to require the defendants to pay for an abatement program estimated to cost over $2.4 billion. In July 2008, the Supreme Court of Rhode Island unanimously overturned the verdict, saying "the State has not and cannot allege any set of facts to support its public nuisance claim" and held that "however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm.

Kleinberg's comments were a blow to the paint industry, implicating some level of responsibility on defendants Atlantic Ritchfield Company, ConAgra, DuPont, NL Industries and Sherwin Williams. Similar suits, since the 1980s, alleging lead paint manufacturers committed a public nuisance by promoting and making paint with lead-a known hazardous material, were dismissed in other regions. But in California under state law, the public nuisance argument is moving forward.

The history of the paint industry shows lead pigment and paint manufacturers promoted their products despite knowing the health dangers lead exposure posed throughout the 20th century, according to plaintiff's expert witness David Rosner, Professor of History at Columbia University and co-author of "Lead Wars: The Politics of Science and the Fate of America's Children."

ARCO, now owned by BP and previously known as Atlantic Richfield Company, started manufacturing white lead in 1919 and continued until 1946. DuPont made white lead carbonate from 1917 to 1924 until it purchased the product from other manufacturers and sold paint containing white lead until 1966.

NL Industries stipulated it manufactured lead based paints and sold lead based paints and pigments from 1900 to 1972, according to the plaintiff's trial brief. Although an annual report from the company in 1912 noted dust from lead paint a "source of danger" the company marketed it's lead paint to families with children under the Dutch Boy brand with a slogan "This famous Dutch Boy Lead of mine, can make this playroom fairly shine!"

Sherwin-Williams began producing lead based paint in 1884, according to plaintiff's, and did so for nearly a century up until around 1972. In the trial brief plaintiff's quote an internal publication for Sherwin-Williams "Chameleon" in 1900 that identified lead paint as a "deadly cumulative poison."

WP Fuller, now owned by ConAgra, manufactured lead based paints from 1894-1948, alththogh plaintiff's argue it may have continued until 1958. According to their trial brief, WP Fuller was sued in 1909 by an employee for lead exposure and admitted to knowing "dust from pigments were hazardous" more than 100 years ago.

Defendants were all at some point members of the Lead Industry Association, LIA, which led and financed a national white lead paint advertisement "The Forest Products Better Paint Campaign" according to Rosner. WP Fuller "contributed money to the Lead Industries Association," he testified. Sherwin-Williams joined later in 1937 to help finance advertising that included lead based paints.

Successively, attorney for each defendant called into question the company's membership to LIA and specific involvement or non involvement with The Forest Products Better Paint Campaign.

"DuPont joined the LIA after the white lead promotion campaign and Forest Products Better Campaign," argued Attorney Clement Glynn on behalf of his client DuPont. DuPont was member of LIA from 1948 to 1958. Glynn also argued DuPont never contributed funds to the LIA's white lead campaign or programs.

Plaintiffs displayed about 11 advertisements for lead based paints from the early 1900's. But, Glynn called into question plaintiff's exhibits. While some national advertisements touted the benefits of lead paint, some didn't even mention lead paint-the defense pointed out. Glynn pointed to three exhibits - an ad in 1949 in the Monterey Herald for Prepared Paint Outside White 40, a 1954 ad for DuPont's Flow Kote and an ad that same year in the San Diego Union for DuPont's Duco paint, none of them contained lead at the time of the ads.

Rosner said his scope was not to just identify lead paint advertisements, but to give testimony to the overall paint industry's national advertisement attempts. "They were describing and promoting paint in various parts of the country," he said. Nationally, Rosner testified there were "hundreds if not thousands" of paint manufacturers. Many were later bought out by National Lead Industries in the 1900's.

Defendants attorneys also argued that several ads in the exhibit did not specifically target California. Pointing to a 1918 ad for lead paint in Literary Digest, Glynn questioned Rosner where the publication was offered in California. Rosner did not know.

"I'm not testifying about what's in California, I just don't know," said Rosner in a deposition.

Plaintiff's say Rosner's expertise is in national promotions of paint including lead-based paints and pigments. Another witness Dr. Gerald Markowitz, co-author with Rosner of the book "Lead Wars" will testify about the specific history of lead paint sales and promotions in California later this week.

It appears the plaintiff's strategy is to provide a national context of the industry's lead based pigment and paint advertising as well as the national health impacts of lead exposure.

Plaintiff's next two expert witnesses will narrow the focus down to lead paint history and health impacts in California and the 10 jurisdictions filing the law suit.

That is, if the parties don't reach a settlement, as Kleinberg is urging them to do, before hand. Otherwise, the trial is expected to continue another two weeks.