Calif. lead paint trial enters third week

SAN JOSE, Calif. (Legal Newsline) -- The public nuisance lawsuit against one-time manufacturers of lead pigment and paints continued into its third week of testimony Monday.

On the stand Monday in the case The People of California v. Atlantic Richfield Company et al. was expert witness Dr. Michael Kosnett, a professor of Toxicology in the Environmental and Occupational Health Department at University of Colorado's School of Public Health.

Kosnett, who also is the author of several college textbook chapters about lead and who has served as a consultant to the California Department of Occupational Safety Health to establish levels of lead exposure that are more stringent, discussed the medical history of lead exposure.

"There are many accounts of children being exposed to lead paint in their homes that go back to before 1900 ... Both intact and deteriorating paint as a source of exposure were documented," said Kosnett, who was an expert in two similar and unsuccessful lawsuits.

Plaintiff's must prove the defendants engaged in a public nuisance, "substantial and unreasonable offenses against, or interferences with, the exercise of rights common to the public, that are enjoyable or abatable" according to California Health and Safety civil code 3479. In addition to proving defendants engaged in a public nuisance the plaintiffs must also prove the "defendants created or assisted in the creation of the public nuisance" according to the 6th District Appellate Court opinion.

The unprecedented ruling, allowed the trial to move forward. Since 1987 jurisdictions across the county have attempted to sue one time makers of lead based pigments and paints; but attorneys for defendants say the arguments are unmerited and the legal system has agreed, except in California, where the suit has made it to trial.

To prove the public nuisance, plaintiff's counsel Peter Earle displayed a dozen articles in leading medical journals between 1878 and 1943 that pointed to lead based paint as a cause in childhood lead poisoning, resulting in lead-palsy, or the paralysis in children after ingesting lead, kidney damage, and more subtle symptoms. Expert witness, Kosnett testified about the articles indicating that broad knowledge within the medical community about lead exposure through lead based paints, existed since the 1ate 1800's. Kosnett discussed an 1894 article in the Association of American Physicians titled "On Lead Palsy in Children; With a Report of Three Cases" by Dr. Wharton Sinkler.

"He reports three cases of children; one whose father kept lead paint in house and children were found to be playing with it, smeared it on their face, ingested some and all became ill," testified Kosnett.

Sinkler's article also quoted Dr. Abraham Jacobi, who went on to become President of the American Medical Association and also had encounters with lead poisoned children exposed to lead paint.

"Two cases of lead paralysis in children which I remember distinctly, were cases in which the arms and legs and feet were equally affected. One was a case of a boy who had been in the habit if eating the paint form his fathers fence," read the 1894 medical report.

Knowledge and concern resulted in legislative action in 1910 when then congressman Richard Bartholdt from Missouri introduced a bill, HR 21901 Manufacture, Sale, etc. of Adulterated or Mislabeled White Lead and Mixed Paint to label paints that contain white lead with as poison. It was never adopted.

Much of Kosnett's testimony relied on archived articles plaintiffs motioned to move into evidence, but Judge James P. Kleinberg upheld the objections from defense attorneys arguing a lack of foundation existed for entering the articles. Kleinberg noted he would consider the historical documents as the basis for setting Kosnett's knowledge, that is all.

To enter the archived documents as evidence plaintiff's would have to prove the defense knew the body of medical knowledge existed, which counsel Earle indicated may occur later in the trial with another expert witness, indicating they were setting the stage to lay a foundation for the articles to be used as evidence later in the trial.

Attorneys also discussed a 1931 statement by then U.S. Attorney General:

"Tho lead paint has a wide field of usefulness, the painting of babies toys and cribs is not one of them."

Although the Surgeon General issued a public warning, counsel Don Scott, representing defendant NL Industries was quick to point out, the Surgeon General never called for a ban on lead paint.

Plaintiff's attorney Earle argued while the government didn't ban lead based paints, the American Medial Association issued guidelines on "structural painting and pointed out lead pigments could not be used where they can be in reach of children."

Kosnett went on to testify that doctors in the 1930s were way a head of their time, calling a lead level of 6 the average for New Yorkers, C.N. Myers wrote.

"It is our belief that lead has no physiological significance, and if small amounts of lead have reached the tissues it is a contamination and a detrimental deposit," read a quote from Myers' 1935 report The Distribution and Diagnostic Significance of Lead in the Human Body.

In their defense, counsel for NL Industries, Scott noted citing the same sources from the defense, that over the years, the rate of high blood lead levels in the U.S. has significantly decreased to less than 2 percent above the 5 micrograms per deciliter national standard.

Dr. Joseph Courtney, formerly of the California Department of Health Services Childhood Lead Poisoning Prevention Branch will be the plaintiff's next expert witness as well as other officials from the plaintiff's jurisdictions discussing the local impacts of lead based paint in their regions.

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