Public nuisance case against former lead pigment, paint manufacturers set for trial Monday

By Jessica M. Karmasek | Jul 12, 2013

SAN JOSE, Calif. (Legal Newsline) -- Ten California cities and counties are asking a state court to declare that all lead paint on privately-owned residential buildings within their jurisdictions presents a public nuisance that requires abatement.

The trial is scheduled to begin Monday in Santa Clara County Superior Court in San Jose Monday. Judge James P. Kleinberg will preside over the 13-year-old case, The People of California v. Atlantic Richfield Company et al.

The 10 California cities and counties suing include: 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.

The named defendants, former manufacturers of lead pigments and paints, are: The Sherwin-Williams Company, NL Industries, ConAgra Grocery Products, DuPont and Atlantic Richfield Company.

The cities and counties, which have tried since 2000 to recover costs for medical care, education programs for children, inspections and, most importantly, abatement, allege the manufacturers are responsible for creating or assisting in the creation of the "widespread public nuisance" by concealing the dangers of lead; mounting a campaign against its regulation; and "actively promoting" lead for residential use despite the known harms.

"As a strategy to combat the increasing public health concern that was directed towards the hazardous nature of their product, Defendants shifted the blame for lead poisoning to lower income populations and minority groups, a practice that has continued until this very day," lawyers for the plaintiffs wrote in a recent trial brief.

Seven other, similar public nuisance cases have been filed against the former manufacturers. All of the previous cases either have been voluntarily dismissed or rejected.

The California case, filed more than a decade ago, is the last remaining.

The plaintiffs in the case are requesting the court order the defendants to abate the lead paint "nuisance" that exists in their jurisdictions "in order to save additional children from being poisoned."

According to the Centers for Disease Control and Prevention, or CDC, lead poisoning can affect nearly every system in the body.

Because it often occurs with no obvious symptoms, lead poisoning frequently goes unrecognized.

It can cause learning disabilities, behavioral problems, and, at very high levels, seizures, coma and even death, according to the CDC.

The crux of their lawsuit is simple, the plaintiffs contend: lead paint presents a quantifiable risk of harm to children who reside in or frequent homes with the paint.

"The legal question is not, as Defendants suggest, whether there are alternate sources of lead poisoning to the population in general; instead the legal question is: whether lead in and around homes presents a substantial and unreasonable injury to health and/or interference with the public's free use and enjoyment of property," the cities and counties wrote in their trial brief.

The defendants, meanwhile, argue that the litigation is "particularly puzzling" given that the cities and counties have stated that they have no, or very few, cases requiring intervention for children's ingestion of lead -- and even then, the sources of the lead are highly varied.

The manufacturers -- who contend they are the wrong target -- argue in their trial brief that no public nuisance exists.

"Plaintiffs cannot prove that white lead in paint now exists in identified locations in a condition constituting a substantial and unreasonable interference with a public right. This is the well-established test for public nuisance," lawyers for the defendants wrote.

Also, the evidence does not establish that children's blood lead levels, or BLLs, present a current public health crisis. Instead, the defendants argue they show the very opposite -- a public health "success story."

"Over the last decade and a half the State's existing program of education and maintenance, pursued without the massive and unprecedented abatement scheme Plaintiffs ask the Court to impose, has worked," they wrote in their brief. "Both average BLLs (less than 1.0 micrograms per deciliter) and prevalence of elevated blood lead levels (EBLs) (0.24 percent) are at historic lows, and falling.

"Much of the residual incidence of EBLs is attributable to non-paint sources that this lawsuit ignores."

The manufacturers also contend that the plaintiffs have no evidence that promotion by any of the companies caused the application of any white lead -- the chemical compound that tends to cause lead poisoning -- to houses in the 10 jurisdictions, let alone that such promotion caused the presence of lead paint to be widespread today.

"They cannot identify anyone who heard or read an allegedly wrongful advertisement and then applied paint containing white lead," the manufacturers wrote in their brief. "They just argue that (1) white lead paint was promoted, (2) white lead paint was applied, therefore (3) the promotion caused the application."

As to the plaintiffs' proposed remedy, the manufacturers call it "wrong."

"That program is unnecessary in view of the success that has been achieved in driving BLLs down without it, would likely cause EBLs that otherwise would not have occurred, and would entail costs, risks and burdens far in excess of any benefits," their lawyers wrote.

The defendants point to the federal Environmental Protection Agency, which says lead paint usually is not a problem if it is in good shape and left undisturbed.

Representing the plaintiffs in the case are: the Santa Clara County Counsel's Office; the San Francisco City Attorney's Office; Burlingame, Calif.-based Cotchett Pitre & McCarthy LLP; and Motley Rice LLC.

Representing the defendants: Arnold & Porter LLP; Omaha, Neb.-based McGrath North Mullin & Kratz PC LLO; Palo Alto, Calif.-based Skadden Arps Slate Meagher & Flom LLP; Richmond, Va.-based McGuire Woods LLP; Walnut Creek, Calif.-based Glynn & Finley LLP; San Jose-based McManis Faulkner; Denver-based Bartlit Beck Herman Palenchar & Scott; and Jones Day.

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

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