Jessica M. Karmasek Sep. 16, 2013, 5:45pm

SAN JOSE, Calif. (Legal Newsline) -- The plaintiffs in a six-week trial over lead paint -- 10 cities and counties in California -- argue that the one-time paint and pigment manufacturers they're suing have not presented a "persuasive" case.

The 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 -- filed their 52-page statement of decision with the Santa Clara County Superior Court Friday.

Friday was the deadline for all parties in the lead paint trial, which wrapped up last month, to submit their proposed statements of decision, as requested by Judge James Kleinberg. Kleinberg is presiding over The People of California v. Atlantic Richfield Company et al.

In their statement of decision, the plaintiffs argue that their witnesses were "credible," and that the defendants' witnesses -- which refuted evidence offered by the cities and counties -- were "not persuasive."

"Defendants contend that 'intact' lead paint does not present a hazard. The Court finds that the evidence demonstrates otherwise," the plaintiffs wrote in their statement and proposed order. "Lead paint on high friction surfaces presents an immediate hazard, even if it is presently intact, because normal use causes the paint to degrade, exposing young children to lead dust.

"When intact lead paint is on surfaces such as windowsills and railings that can be mouthed or chewed a child, the paint is a hazard regardless of whether it is intact.

"Furthermore, lead paint that is currently intact poses a substantial risk of future harm because it will inevitably degrade and be disturbed by normal residential activities, such as renovations."

The cities and counties want the companies to pay for the 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 only remedy for this public nuisance, the cities and counties argue, is abatement.

"Even Defendants' abatement expert acknowledged that lead paint hazards in homes should be remediated despite the expense and time required," the plaintiffs wrote.

The cities and counties also argue in their statement that the limits on live testimony were "appropriate and reasonable."

"Defendants assert that this Court's imposition of time limits for testimony violates due process. They are wrong. Both California and federal courts have regularly upheld time limitations on testimony," the plaintiffs wrote.

"Each Defendant had more than enough time to present its case and the Court provided Defendants with extra time for rebuttal after they had exceeded their allotted time. Defendants were able to conduct examinations of their own expert witnesses as well as lengthy cross examinations of the People's witnesses (often well in excess of the direct examination times), to present additional testimony through depositions, and to enter hundreds of documents into evidence."

The plaintiffs continued, "Each Defendant had ample opportunity to present the evidence in support of its case. Due process requires no more. In any event, Defendants did not use their time efficiently."

Click here to read the plaintiffs' statement of decision and proposed order.

In their own statements filed Friday, the defendants -- The Sherwin-Williams Company, NL Industries, ConAgra Grocery Products, DuPont and Atlantic Richfield Company -- argue the judge should find in their favor.

They contend the plaintiffs failed to prove their case.

If Kleinberg sides with the cities and counties, the 13-year legal battle could end up costing the defendants more than $1 billion in abatement fees.

Closing arguments in the case are set for Sept. 23, after which Kleinberg is expected to issue a decision within 90 days.

From Legal Newsline: Reach Jessica Karmasek by email at

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