Judge again asks sides to settle in Calif. lead paint case

SAN JOSE (Legal Newsline) - Santa Clara County Superior Court Judge James Kleinberg on Monday ended proceedings in a 13-year-old case against paint companies by admonishing both sides, again, to settle.

Kleinberg made his remarks after closing arguments in The People of California v. Atlantic Richfield Co. et. al., which seeks to hold five defendant paint companies liable for an alleged lead paint public nuisance in 10 county and municipal jurisdictions in the state.

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence," Kleinberg said, quoting John Adams who defended British soldiers in the Boston Massacre trial of 1770.

Kleinberg also recalled a one-word response made by a judge in a civil case he tried as a lawyer. The judge, he said, asked the plaintiff's lawyer how his clients felt about their prospects, to which the lawyer responded "Very confident."

"Why," asked the judge.

Kleinberg said the case settled a few days later.

Saying it is "never too late to settle," Kleinberg encouraged the sides to bring an end to the litigation that has spanned more than a decade and could put the defendants - Atlantic Richfield Co., ConAgra, DuPont, NL Industries and Sherwin Williams - on the hook for more than $1.4 billion to abate lead paint in pre 1978-built homes. Kleinberg said it takes He said it takes courage to go to the other side.

"I hope you take these thoughts to heart," he said. "Months or years from now your respective bosses will say to you, 'What were you thinking?' They're not going to say, 'What was I thinking?'"

He ended by saying, "What to me is the highest calling for a lawyer, that is to resolve disputes."

Kleinberg first encouraged settlement during the second week of the six-week-long trial.

"If you're interested in gambling go to Reno and Las Vegas," 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."

Kleinberg 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.