Jessica M. Karmasek Aug. 14, 2013, 2:30pm

SAN JOSE, Calif. (Legal Newsline) -- The defendants in an ongoing trial over lead paint -- one-time paint and pigment manufacturers -- have asked the California judge hearing the case to dismiss it.

On Tuesday, defendant The Sherwin-Williams Company filed a 16-page motion for judgment in Santa Clara County Superior Court.

Read the complete motion here.

Sherwin-Williams argues that Judges James Kleinberg should grant judgment for the company, dismissing the action.

"The record evidence presented in Plaintiffs' case cannot support a judgment against The Sherwin-Williams Company: (1) Plaintiffs failed to prove essential elements of their claim; and (2) they are asking the Court to trespass into areas entrusted exclusively to the legislature," wrote Robert A. Mittelstaedt, an attorney at Jones Day, which is representing Sherwin-Williams.

The company argues that the plaintiffs -- 10 cities and counties -- presented two historians, Dr. David Rosner and Dr. Gerald Markowitz, to testify about Sherwin-Williams' conduct but that their concessions "fall short" of the standard for liability.

"Professor Markowitz's testimony does not save Plaintiffs' case. After reviewing thousands of California newspaper ads, he could not identify a single Sherwin-Williams' ad in the last 103 years [dating from 1910 when Sherwin-Williams first made white lead carbonate] that even had the word 'lead' in it," Mittelstaedt wrote. "Dr. Markowitz also found no Sherwin-Williams' ad trying to sell white lead pigment to paint manufacturers, or dry white lead or white lead in oil or white lead paste.

"Consistent with the void of white lead promotions, Dr. Markowitz could not name any other American paint manufacturer that had done more to develop and market non-lead pigments and paints for residential use."

The 10 cities and counties -- Santa Clara County, San Francisco City, Alameda County, Los Angeles County, Monterey County, Oakland City, San Diego City, San Mateo County, Solano County and Ventura County -- want the one-time lead paint and pigment manufacturers to pay for the abatement costs of eliminating lead paint from homes to protect public health.

The federal government banned lead-based paints in the United States in 1978, but the plaintiffs contend the paint remains in millions of homes and is the primary source of childhood lead poisoning today.

The remedy for this public nuisance, they argue, is abatement.

The defendants -- which also include NL Industries, ConAgra Grocery Products, DuPont and Atlantic Richfield Company -- contend that the lawsuit is without merit.

"In addition to the absence of any evidence of a wrongful promotion, Plaintiffs have not offered a single bill of sale or invoice showing a sale of any Sherwin-Williams' white lead carbonate or lead paint in any prosecuting jurisdiction," Mittelstaedt wrote.

"Dr. Markowitz's testimony stands for nothing more than that Sherwin-Williams expanded its presence over time in California through stores and dealers."

Markowitz and Rosner also had no data concerning volumes of either white lead carbonate used in residential paint or residential paint containing white lead that Sherwin-Williams sold in California for any use, the company noted.

"In the end, Plaintiffs have zero evidence of Sherwin-Williams' promotion of white lead pigments for residential use in California. At best their evidence adds up to no more than that Sherwin-Williams sold various kinds of paints in California over the last 100 or more years, some of which contained white lead but were not promoted because they had white lead," Mittelstaedt wrote. "Sherwin-Williams promoted its brand and paints generically.

"That is not enough for liability."

The company also notes that while the court has the jurisdiction to grant injunctive relief to prevent, or abate, a public nuisance, it argues it should not.

To do so, it contends, would be "second-guessing" the decisions of federal and state legislative or regulatory bodies.

"That is exactly what Plaintiffs are asking the Court to do here," Mittelstaedt wrote.

Sherwin-Williams argues that the state already has an effective program in place.

Two decades ago, state lawmakers created the California Childhood Lead Poisoning Prevention Program, often referred to as the CLPP Program.

The prevention program handles public education, blood lead testing of children, home inspections and abatement.

"It remains one pillar of the State's longstanding and successful effort to prevent childhood lead exposure," Mittelstaedt wrote.

The other pillar of the prevention program is a "carefully crafted" set of housing codes.

"These codes require property owners to prevent lead paint hazards; to provide safe, habitable housing free of any nuisance; and to abate lead paint hazards and nuisances when they arise," Mittelstaedt explained in the motion.

California law also requires owners and contractors to follow lead-safe work practices in pre-1978 housing.

In addition, current federal and state law, supplemented by local law, obligates and incentivizes millions of owners and contractors to inspect for and prevent lead paint hazards, the company notes.

"Despite the admitted success of the State's legislative program, Plaintiffs ask this Court to order Defendants to create, administer and enforce a mammoth, new program covering the same areas as existing programs," Mittelstaedt wrote.

"Plaintiffs are not alleging that Sherwin-Williams has violated any aspect of the State's existing CLPP Program or any housing code. Nor are Plaintiffs seeking to enforce existing laws. Rather, they are asking this Court to create its own competing, overlapping and inconsistent programs.

"In effect, Plaintiffs invite this Court to create a 'Super Lead Agency' and become its czar, making complex scientific, health, housing, and economic policy determinations about the definition of 'actionable' lead paint hazards, to what extent components with intact lead paint should be inspected or removed, how to 'counsel' parents to have their children tested, how to design abatement, and how to allocate costs of abating lead paint hazards caused by property owners' negligence."

The company argues that "countless" disputes will arise in administering such a plan -- between owners and tenants over enrollments; between the oversight authority, the defendants, owners and tenants over need for and the design of any proposed abatement; or between owners and the defendants over responsibility for structural repairs.

Simply put, the plaintiffs proposed abatement plan -- which could end up costing nearly $2 billion -- is too dangerous, Sherwin-Williams contends.

"Plaintiffs say that their abatement program, which would affect perhaps 25 to 30 percent of California's residents (3.5 million housing units with an assumed average occupancy of 3 people per unit), is simple, risk-free, and proven. Dr. (David) Jacobs presented a similar proposal to Congress, which rejected it. In fact, no state has adopted his proposed program, especially not on the scale proposed here," Mittelstaedt wrote. "Abatement presents risk of creating lead dust if not always done scrupulously.

"Dr. Jacobs' plan would make California a multi-year, risky, Court-supervised science project."

In particular, the abatement plan calls for the remediation of all "friction surfaces" with lead paint, including windows, doors and floors, primarily through replacement.

"Yet, current HUD policy as of April 2013 instructs against full replacement of lead-safe windows," Mittelstaedt pointed out.

Also, the plaintiffs' experts are divided over the exact source of lead, the company contends.

Sherwin-Williams and the other defendants have argued that other exposures are more likely to elevate a person's BLL than paint.

For instance, lead can be found in gasoline and emitted from smokestacks.

"Dr. (Paul) Mushak testified that leaded gasoline fallout is highest near the street but minimal near the house. Dr. Jacobs, however, conceded that leaded gasoline is an 'important source' of lead in soil, and cited a paper by Dr. (Howard) Mielke, to whom he referred as a 'good friend' and reliable authority. Dr. Mielke concluded that leaded gasoline contaminates the soil next to homes," Mittelstaedt wrote.

"While Dr. Jacobs and others recite that lead-based paint in housing is still the predominant source of childhood lead exposure, Dr. (Joseph) Courtney testified that lead from gasoline is the dominant environmental source. Dr. Mielke also demonstrated that the primary source of lead in soil is leaded gasoline emissions.

"The predominant source of childhood lead exposure today is anything but settled."

The company also argues that the plaintiffs' plan would create an incentive for landlords to let hazards develop, knowing that the more they neglect their properties and the more violations they accrue, and the higher the elevated blood lead levels of their tenants, the quicker they rise on the priority list -- that is, the list of properties that the defendants must abate first at their own expense.

"Putting aside whether this is good public policy, it certainly interferes with the existing regulatory system," Mittelstaedt wrote.

On top of that, the requested nuisance declaration, if issued, would cast a stigma over pre-1978 houses in the state, Sherwin-Williams argues.

That, the company contends, would likely reduce property values and marketability.

Owners could challenge property tax assessments, impacting city and county revenue, and owners of pre-1978 houses could have difficulty finding property insurance if their properties are declared to have a nuisance. Rates also would likely increase, Sherwin-Williams argues.

"The Court should not enter into this multi-faceted policy thicket where the best intentions of a few could trigger harmful, unintended consequences," Mittelstaedt wrote.

Co-defendant Atlantic Richfield Company filed a memorandum of support of Sherwin-Williams' motion for judgment Tuesday.

Click here to read the memorandum in support.

Depending on Kleinberg's decision, the trial could pick up Thursday. The defendants would then present their side.

From Legal Newsline: Reach Jessica Karmasek by email at

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