Jessica M. Karmasek Feb. 12, 2015, 1:00pm



SAN JOSE, Calif. (Legal Newsline) - A group of former lead paint manufacturers filed replies with a California appeals court last week, again arguing that a judge’s decision holding them liable for the lead paint in millions of homes in California is bunk.




 




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




 




In early 2014, 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.




 




The manufacturers filed notice of intention to move for a new trial and a motion to vacate last February. Soon after, in March, the trial court denied the defense’s post-trial motions.




Days later, ConAgra, NL Industries and Sherwin-Williams filed notices of appeal.




 




The companies filed their opening briefs to the appeals court in September.




 




ConAgra, in its 60-page reply, argues that Kleinberg disregarded legal standards and denied the company a fair trial.




 




“In its opening brief, ConAgra showed that the trial court’s approach to each element of a nuisance claim was legally incorrect, the record does not permit liability under the correct legal standards, and judgment against ConAgra is barred on multiple grounds, including laches, successor liability, constitutional and statutory limits, and other prejudicial errors that mandate reversal,” lawyers for the company wrote last week.




 




“Plaintiffs failed to rebut any of these showings.”




 




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.




 




ConAgra contends that the plaintiffs, in their briefs, have failed to rebut much of the company’s arguments.




 




“By their inability to answer the points raised in the opening briefs, Plaintiffs have confirmed that the judgment should be reversed with directions to enter judgment for ConAgra,” the company’s lawyers wrote.




 




NL Industries, in its own 58-page reply, argues that the plaintiffs are trying to sidetrack the appeal with an “inaccurate story” about the companies’ place in the “evolving knowledge of lead paint toxicity.”




 




“The People hope to turn these legal disputes into a factual scuffle where they can claim appellate deference to the prevailing party, and so they tell a story of bad industry based on exaggerations and careless citations,” lawyers for NL Industries wrote.




 




“In the People’s story, defendants possessed medical knowledge superior to the public health authorities, concealed facts about lead hazards from the government, and used deceptive advertising to mislead consumers.”




 




But even the plaintiffs’ experts didn’t support such claims, and often said the opposite, NL Industries argues.




 




“The People simply want to place defendants on the wrong side of history as science changed,” its lawyers wrote. “Lead paint had supporters and detractors for most of the 20th Century. With the luxury of hindsight, the People embrace the side of those opposing lead paint in the past because today’s science takes that side.




 




“However, judgment by hindsight creates absolute liability; and that is not the tort law of California.”




 




Sherwin-Williams contends that the plaintiffs, simply put, have no evidence to support essential elements of the case, and the trial court misapplied legal standards to hold the companies liable.




 




“To disguise their lack of evidence and the errors of law, plaintiffs now seek to change their case and the law,” according to the 63-page reply. “They could not and did not prove the case that they pleaded and told this court they were going to prove.”




 




It added, “When the court reviews the entire record, it will find no evidence, let alone substantial evidence, to support essential legal elements of plaintiffs’ claim.”




 




Any amicus briefs must be filed with the appeals court by Feb. 20. At that time, any party can respond to an amicus within the time specified by the appeals court.




 




Then, it is a matter of waiting for oral arguments.




 




From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.


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