Ann Maher Aug. 21, 2013, 5:28pm

SAN JOSE, Calif. (Legal Newsline) -- Proving that lead paint manufacturers created a public nuisance in 10 California cities and counties is difficult for plaintiffs on a number of fronts, according to former Iowa attorney general and spokeswoman for paint manufacturers Bonnie Campbell.

Chief among those reasons, she said in an interview Tuesday, is that current blood lead levels are close to zero in the state and lower than the national average,

"It's less than 1 percent," she said. "It 's chasing zero. There is no public nuisance."

She said prevention of childhood lead poisoning through education and maintenance has been specifically addressed through the state's enactment of the Childhood Lead Poisoning Prevention Program (CLPPP) and has been deemed a "public health success story."

She said that some programs within the 10 jurisdictions have not used all the money they have been allocated for dealing with elevated blood lead level prevention programs (funded through a tax levied against the paint industry) and "they have never asked for an increase."

"I would conclude they don't need it," she said.

At trial now in its sixth week in Santa Clara County Superior Court, plaintiffs seek monetary damages exceeding $1 billion to abate lead paint in private residences in Los Angeles County and the cities of San Diego and San Francisco among others.

The plaintiffs' proposed extensive remedy -- which includes removal and replacement of doors and windows with lead paint in homes built before 1978 -- is unnecessary, Campbell said. Public buildings are specifically exempted from complying with the remedies being sought in the litigation.

Campbell also questioned legal implications of declaring pre-1978 homes with lead paint public nuisances.

"What if I want to sell my house if I have intact lead paint?" she said.

She also said that remediation of intact lead paint would bring unintended consequences by introducing lead dust into the environment.

"It's not just unnecessary, it doesn't make sense. Why would you create a remedy for something when what is in existence is already working?

"It really would change California law," she said. "Now it is not illegal, no one is required to do anything with intact pain."

The case was filed 13 years ago on negligence and product liability claims, but when other courts across the country rejected these claims, plaintiffs' attorneys switched gears and brought forth public nuisance claims, she said.

She said plaintiff attorneys have "shopped around the country since the late '80s," and the cases "have been hard fought."

"Courts have said you can't hold companies liable for injuries created by someone else," she said.

Public nuisance cases have failed in eight states - Ohio, Missouri, New Jersey, Illinois, New York and Wisconsin and most recently in Rhode Island in 2008. The court in Rhode Island held that the state failed to identify the location of the nuisance, to show interferences with a public right or to establish that the defendants had caused any nuisance.

"We agree with defendants that the public nuisance claim should have been dismissed at the outset because the state has not and cannot allege that defendants' conduct interfered with a public right or that defendants were in control of lead pigment at the time it caused harm to children in Rhode Island,"

In The People of California v. Atlantic Richfield et al, Campbell said, "There's not much new here, except the passage of time."

She said the plaintiffs also have to prove paint companies hid important information on the risks of lead paint exposure and "egregiously" promoted it anyway during the first part of the last century knowing it would create the alleged public nuisance today.

"There's no evidence at all the companies hid information or had information" that wasn't shared, she said,

"The companies funded nearly all the research and took lead paint off the market before the government did," she said.

The trial under way is expected to wrap up Thursday, followed by closing arguments at the end of September. The bench trial is presided over by Judge James Kleinberg. He would issue his ruling within 90 days of closing arguments.

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