Christina Aanestad Aug. 15, 2013, 2:58pm

SAN JOSE, Calif. (Legal Newsline) - Plaintiffs pursuing a lead paint public nuisance case against five paint manufacturers responded to two defendants' motions for summary judgment by saying one of the companies used "sleight of hand" and "spin" to downplay its role in the "serious public health threat posed by lead paint."

With three other defendant companies declining to file motions for summary judgment, the trial before Judge James Kleinberg continues Thursday with the start of defense expert witness testimony.

Kleinberg likely won't issue a ruling on the summary judgments Thursday, saying "[The] court is permitted to take it in under submission through the end of the trial. I don't know what I'll do."

Plaintiffs -- which include 10 cities and counties in California including Los Angeles and San Francisco counties -- characterized defendant Sherwin Williams as an "ostrich with its head in the sand" waiting "for the evidence to go away" in response to the company's motion for summary judgment. Their response to Atlantic Richfield (ARCO) accused the company of spin and sleight of hand.

In a trial now into its fifth week, plaintiffs seek to hold The Sherwin-Williams Company, ARCO, ConAgra Grocery Products, DuPont and NL Industries, the owners of one-time lead paint and pigment manufacturers, accountable for the creation and dissemination of lead based paints and pigments in their jurisdictions, which they argue poses a public nuisance. The solution, they argue, is an abatement program funded by the companies at costs estimated to exceed $1.4 billion.

In their motions for summary judgment, attorneys for ARCO and Sherwin Williams argue that the lawsuit lacks evidence and violates the separation of powers principle and equitable abstention doctrines.

Attorney Jonathan Stern with Arnold & Porter, counsel for ARCO, argued that out of 9,000 newspaper ads plaintiffs presented as evidence the company promoted lead paint in their jurisdictions, not one "was of Anaconda white lead, or any product made by ARCO- Anaconda's predecessor."

"It was a body of evidence that excluded Atlantic Ritchfield," Stern said.

Atlantic Ritchfield merged with The Anaconda Company in 1981. Its subsidiaries International Smelting & Refining Company ("IS&R") and Anaconda Lead Products Company ("ALPC") operated a lead pigment manufacturing plant in Indiana for 26 years, from 1920-1946.

Atlantic Ritchfield did, however, advertise in national trade journals which publicized their warehouses in the plaintiffs' jurisdictions as early as 1922, argued Danny Chou, Assistant County Counsel for Santa Clara County, one of the plaintiff's waging the suit.

"The evidence that ARCO did in fact sell white lead pigment is fully enforced by its warehouses in Los Angeles in early 1922 and in Oakland in 1946, and the warehouses existed to transport white lead pigment in its vicinity and that vicinity includes the 10 jurisdictions in this case," Chou said.

But Stern countered that plaintiffs' evidence was insufficient.

"There's no evidence what was in those warehouses, what was shipped, what it was, where it went and for what purpose," he argued.

"ARCO talks about evidence but not reasonable, logical inference," replied Chou.

Sherwin Williams counsel Michael Pohl argued that evidence introduced did not meet the court's requirements that defendants engaged in egregious conduct. Pohl referred to plaintiffs' expert witness, Dr. David Rosner, who Pohl argued did not present evidence that Sherwin Williams sold dry white led carbonate to paint manufacturers.

Sherwin Williams manufactured carbonate for use in its own products, he said. He said that plaintiffs could not prove the company actively promoted it in the plaintiffs' jurisdictions.

"He (Dr. Rosner) agreed they couldn't find any ad where it was promoting its product, since their pigment was made internally for their own paints," said Pohl.

Pohl also argued the court ruling on an abatement program violated the separate powers' principle and equitable abstention doctrine.

The motion for summary judgment argues that a court-ordered lead-paint abatement program would exceed a judiciary role into a legislative role, by creating a "Super Lead Agency" and acting as its "czar." That, he argued, violated the equitable abstention doctrine, which sets the standards for federal courts to abstain from ruling on cases that can be resolved by local government.

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