Jessica M. Karmasek Sep. 18, 2014, 1:30pm

SAN JOSE, Calif. (Legal Newsline) - A group of former lead paint manufacturers are appealing a judge’s decision holding them liable for the lead paint in millions of homes in California, saying in briefs this week that the ruling was “improper” and a $1.15 billion remedy “erroneous.”

On Monday, ConAgra Grocery Products Company, NL Industries Inc. and The Sherwin-Williams Company each filed opening briefs to the California Court of Appeals, Sixth Appellate District.

Earlier this year, Santa Clara Superior Court Judge James Kleinberg ordered the three companies to pay out $1.15 billion to replace or maintain lead paint in millions of homes in the state. Atlantic Richfield Company and DuPont were dismissed from the lawsuit.

In February, the manufacturers filed notice of intention to move for a new trial and a motion to vacate. Soon after, the court denied the defense post-trial motions.

In March, the trial court denied the defense’s post-trial motions. Days later, ConAgra, NL and Sherwin-Williams filed notices of appeal.

“The trial court departed from this Court’s specification of the requirements for representative public nuisance liability and a permissible remedy. It substituted a single judge’s view of what ‘should’ be done for the Legislature’s proven measures,” lawyers for ConAgra wrote in the company’s 61-page brief. “The judgment rests on incorrect legal standards, insufficient evidence and evidentiary errors, and violates federal and state constitutional due process and separation of powers limits.”

On top of its “improper” liability findings, ConAgra argues that the trial court “piled on an erroneous remedy.”

“(County of) Santa Clara I (v. Atlantic Richfield Company) held the public nuisance statute does not permit damages,” the company’s lawyers wrote. “The trial court violated that direction and other laws by awarding $1.15 billion, ordering an agency to administer the fund, appointing a receiver, and ordering abatement to higher standards than set by existing regulations.

“There is no support in law for this judgment.”

NL, in its 58-page opening brief with the appeals court, called the judgment a “boundless vision of public nuisance.”

“A hindsight judgment of public nuisance that imputes modern scientific knowledge to the past -- creating a fiction that people knew then what they know now, or they ‘knew enough’ to stop making a product long before the contemporary experts said to do so -- is just what this Court in its 2006 decision in this case said should not happen,” they wrote. “To keep the public nuisance claim distinct from products liability claims, this Court stressed that plaintiffs must prove scienter: liability must be ‘premised on defendants’ promotion of lead paint for interior use with knowledge of the hazard that such use would create.’

“Here, the trial court turned the elements of tort liability into broad policy questions -- judging at once all lead paint in innumerable unidentified places and all past promotions of lead paint over a century of changing science.

“Like a legislator, the trial court gathered generalized information to support a declaration of policy.”

Sherwin-Williams, in its own 63-page brief, went even further, arguing that the trial court “usurped” the legislature’s role by redefining intact, interior lead-based paint to be a public nuisance.

“The legislature has determined that owners are responsible to prevent and abate ‘lead hazards’ on their properties,” lawyers for the company wrote. “In conflict with state law, the court improperly shifted that responsibility to three former WLC (white lead carbonate pigments) manufacturers, which neither own nor control those properties and, therefore, have no duty or ability to maintain them.”

Also, the trial itself was unfair, Sherwin-Williams argues.

“After unconstitutionally denying defendants their right to a jury, the trial court arbitrarily restricted defendants’ time and ability to present their defenses,” its lawyers wrote.

The lawsuit was brought by Alameda County, Los Angeles County, Monterey County, San Mateo County, Santa Clara County, Solano County, Ventura County and the cities of Oakland, San Diego and San Francisco.

The federal government banned lead-based paints in the United States in 1978, but the plaintiffs argued the paint remains in millions of homes and is the primary source of childhood lead poisoning today and that the only remedy for this public nuisance is abatement.

Kleinberg agreed, declaring pre-1978 dwellings “public nuisances” because they contain paint with lead in their interiors.

The plaintiffs’ opposition is due within 30 to 45 days, depending on if they seek an automatic extension of 15 days.

The defendants’ reply will be due 30 days following the plaintiffs’ opposition.

Then, at some point, oral arguments will be held.

From Legal Newsline: Reach Jessica Karmasek by email at

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