Christina Aanestad Aug. 8, 2013, 1:58pm

SAN JOSE, Calif. (Legal Newsline) - Manufacturers of lead based pigments and paints were aware of the dangers lead exposure posed nearly 100 years ago, but promoted them anyway, according to testimony from the latest expert witness in a public lawsuit against current owners of former lead paint and pigment manufacturing companies.

Dr. Gerald Markowitz, a historian and professor at City University of New York, blamed a deregulation principle that allowed paint companies to continue mixing lead in paint for generations, despite known and documented health hazards within the paint industry.

"There was a firm belief in the U.S. up until very recently that regulation of toxic substances, except in food, should not be regulated," Markowitz said. "It was a firm belief within (the) industry that they had responsibility rather than government to protect the workforce and protect the public."

Markowitz testified at trial Wednesday in a case brought by 10 cities and counties in California, including Los Angeles County and the cities of San Diego and San Francisco, against companies and parent companies of one-time lead-based paint makers. The plaintiffs want the companies to pay for the cost of eliminating lead paint from homes in their jurisdictions. Defendants include The Sherwin-Williams Company, ConAgra Grocery Products, DuPont and Atlantic Richfield Company.

The People of California v. Atlantic Richfield Company et al is being heard in Santa Clara County Superior Court by Judge James Kleinberg.

Not only do the 10 plaintiff cities and counties have to prove lead based paints and pigments are a public nuisance in their jurisdictions, they also have to prove the makers of lead based paints and pigments promoted lead paint for interior use with knowledge of the hazard it would create.

Plaintiffs argue that as far back as 1939 the Lead Industry Association advocated that its industry could protect the public better than government.

"National Lead had kept up with medical literature about child lead poisoning and was therefore very well informed about children being damaged and killed as a result of ingesting lead paint," said Markowitz, referring to comments from a former NL Industries corporate representative in the 1930s.

As an expert witness Markowitz, co-author of "Lead Wars: The Politics of Science and Fate of our Children," said he researched an estimated 9,000 newspaper advertisements promoting paint including lead based paint. He testified that about one third, or 2,600 ads between the years 1900-1976, promoted lead paints in the plaintiffs' 10 jurisdictions.

Plaintiffs also argued that the defendants' own literature cited the known health hazards of lead paint exposure dating back to the 1930s.

Sherwin Williams' defense attorney Michael Pohl entered its early publication "The Chameleon" as evidence to explain why in part the paint company was making non lead paint at the beginning of the 20th century.

Sherwin-Williams stopped making white lead paint in 1947 and instead focused on manufacturing zinc white pigment for paints. One of those brands was Litophone-a lead free paint which the company tried to market to the U.S. gGovernment. But Pohl argued the demand for lead paint undermined its efforts.

"Even the government refused to buy it and insisted on white lead paint," he said.

Markowitz went on to testify that While Sherwin Williams stopped manufacturing lead based paints in the late 1940s, it continued making lead based paint products decades later.

"[Sherwin Williams] was making primer and under coater in 1960 that included lead," he said.

Markowitz said manufacturers sold lead paint without informing the public of its contents.

"The ads didn't make clear to consumers what was a leaded product they were advertising and what was not a lead product they were advertising," he said, referring to a 1960 Sherwin Williams advertisement.

In another reference to a 1919 Old Dutch Process white lead paint ad in the LA Times - used as evidence by plaintiffs - Pohl argued that many of those such ads weren't actually promoted by the paint companies themselves, but by private paint dealers.


"That wasn't from Sherwin Williams that was from [another company]," said Pohl, who also argued plaintiffs' expert witness couldn't find one single ad directly from Sherwin Williams that promoted lead-based paint.

Plaintiffs countered that paint and pigment makers promoted and sold their products to retail stores.

"The dealer would have a complete line of the paints of that paint manufacturer," Markowitz said. "That would include sometimes, by contract, a leaded paint."

Expert witnesses for the plaintiffs will continue testify this week about the hazard lead paint exposure has in their jurisdictions.

Next week , the defense will present its case. Defendants in the suit say lead exposure from paint continues to decline and does not constitute a public nuisance threat.

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