Christina Aanestad Jul. 17, 2013, 8:30pm

SAN JOSE, Calif. (Legal Newsline) -- Is lead based paint a public nuisance?

A 13-year legal battle that could end up costing paint and pigment manufacturers $1 billion in abatement fees began trial this week. Ten California cities and counties want the companies and parent companies of one-time lead-based paint makers to cough up the cost of eliminating lead paint from homes in their jurisdictions, to protect public health.

The U.S. banned lead paint in 1978, due to its health impacts. But plaintiffs in The People of California v. Atlantic Richfield Company et al., including Los Angeles County and the cities of San Diego and San Francisco estimate lead-based paint remains in or on 5 million homes in the state.

"Santa Clara County has over 400,000 housing units built before 1980," said Danny Chou, assistant county counsel of Santa Clara County.

An abatement program would require homeowners of lead-based painted homes to strip the old paint, which they argue is a public nuisance.

Defendants include The Sherwin-Williams Company, ConAgra Grocery Products, DuPont and Atlantic Richfield Company.

"It's surprising that these counties would treat their own homeowners of well-maintained homes like owners of a crack house," said Antonio Dias, counsel for Jones Day, who is representing the parent company of paint manufacturer Sherwin-Williams.

Dias said left intact, lead-based paint poses no health hazards.

But expert testimony Wednesday revealed lead-based paint is the leading cause of lead exposure in children, including lead-based paint dust from opening windows, and ingesting lead-paint chips from older homes built before the paint was banned.

"Why wouldn't any parent want to have lead-based paint removed to prevent their child from being irreversibly poisoned?" Chou asked.

The defendants, including Sherwin-Williams and DuPont, scoff at the suit.

"This public nuisance lawsuit is without factual or legal merit," writes Bonnie Campbell, former Iowa Attorney General and part of the legal counsel for the defendants.

Similar suits have been rejected, or voluntarily dismissed, in courts across the country, including New York, Missouri, Wisconsin and New Jersey.

However, in 2006, a California appellate court upheld the nuisance argument as a "viable theory."

At issue, now, is whether the manufacturers committed a public nuisance when they sold the lead-laden paint and pigments decades ago. The cities and counties contend, despite knowing the health hazards, paint makers continued using lead in pigments and paints until the legislature outlawed it.

"Lead has been known to be a poison and toxin for centuries," testified expert witness and epidemiologist Dr. Bruce Lanphear, who was referring to an Australian lead epidemic in 1892. European countries banned lead-based paint as early as 1909.

Citing a lead-based paint study more than 100 years ago, Lanphear quoted the author: "Prevention is easy. Paint containing lead should never be employed... where children, especially young children, are accustomed to play."

In 2000, Lanphear worked on a Presidential task force focused on lead poisoning prevention -- the President's Task Force on Environmental Health Risks and Safety Risks to Children -- and was part of a team of scientists picked to lead a congressional mandate in studying what levels of lead in house dust were dangerous to children 20 years ago.

He may be the plaintiffs' strongest expert on the impacts of lead exposure to children.

"There are other sources, but [lead-based paint] is the primary source," Lanphear testified.

He said there are no "safe levels" of lead for children.

"Prevention is the only solution. If a child has high blood lead levels, there's nothing we can do, the damage has already been done," he told the court.

And the damage can be severe, Lanphear said.

Lanphear, who is on the Faculty of Health Sciences at Simon Fraser University in Vancouver, said lead stores in the body, primarily in the bones -- accumulating.

High doses result in death; lower doses can result in brain swelling, kidney damage and anemia. But the impacts to developing children can do much more -- it can impair the cognitive function of growing children resulting in "stunted growth, delayed puberty, intellectual learning and behavioral disabilities," he told the court.

Explaining a graph report from the Nutritional Health and Nutritional Examination Study detecting lead levels and cognitive function of youth from 1988-94, Lanphear explained that "as blood lead levels increase, you see a decline in intellectual abilities."

And those impacts are irreversible, he said.

The anomaly is that all of the reports investigating cognitive defects and increased lead levels that he has seen "are consistent with what we found," Lanphear said.

"That almost never happens in epidemiology," he told the court.

But defendants dismissed Lanphear's expert testimony as "hearsay."

"The author refused to release full data of his studies," argued an attorney for the defendants, who thoroughly want to vet the basis of Lanphear's studies.

However, Judge James Kleinberg overruled objections to Lanphear's testimony.

Also Wednesday, plaintiffs heard testimony from toxicologist Paul Mushak, Ph.D., who upheld the plaintiffs' claim that deteriorating lead-based paint is the primary cause of lead exposure to young children, thus posing a health threat.

Defense counsel spent much of their time in the courtroom disputing the argument that lead-based paint is the primary cause of lead exposure in children.

Attorneys cited findings by toxicologist Howard Mielke in "Lead in the Inner Cities" and "Soil is an Important Pathway of Human Lead Exposure" to support their claim.

"Lead in gas and lead in food, but not paint is the leading cause of high populations PbB (or blood lead) levels in young children," Mielke wrote in "Soil is an Important Pathway of Human Lead Exposure."

That same report also states, "Soil lead resulting from leaded gasoline, pulverized lead-based paint and other sources is equally or more important than lead-based paint (intact or not pulverized) as a pathway of human lead exposure."

Kleinberg, a former business litigator himself, asked if the reports' author was an expert witness for the defense. Counsel replied, "No."

Mushak dismissed Mielke's report as "fringe," calling Mielke "an individual investigator who doesn't have the status or weight of the consensus community."

Scientific panels for the Center for Disease Control and the Environmental Protection Agency have both identified lead-based paint as a primary source of lead exposure to children, despite Mielke's findings, Mushak testified.

The plaintiffs argued that even if there are other sources of lead exposure to children, lead-based paint is one of them.

"This is poisoning kids and we need to get it out of homes as a public policy." said Rebecca Archer, deputy county counsel of San Mateo County, another plaintiff in the suit.

Lanphear's testimony and his cross-examination will continue Thursday.

Kleinberg has given each side 40 hours of testimony, which will likely extend the trial into August.

This week, plaintiffs are presenting their arguments and expert witnesses.

With five witnesses and experts in tow, the plaintiffs likely will continue their arguments into next week.

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