Both sides in Calif. trial use same lead paint expert

SAN JOSE, Calif. (Legal Newsline) -- Both sides in the trial against former lead pigment and paint manufacturers used a California state scientist as an expert witness this week.

Joseph Courtney, a research scientist for the Department of Public Health's Childhood Lead Poisoning Prevention Branch (CLPPB), testified lead-based paint is a source of lead poisoning.

The case of The People of California v. Atlantic Richfield Company et al., was brought by 10 California cities and counties -- including Los Angeles County and the cities of San Diego and San Francisco -- that want the companies and parent companies of one-time lead-based paint makers to cough up the cost of eliminating lead paint from homes in their jurisdictions, to protect public health. Defendants include The Sherwin-Williams Company, ConAgra Grocery Products, DuPont and Atlantic Richfield Company. It's being heard in Santa Clara County Superior Court by Judge James Kleinberg.

"It's an important contributing risk factor," Courtney said. "It's been shown that lead in paint is directly related to children's blood lead levels. We find in California that most of the children that have a 'case of lead poisoning', with high levels of lead, have been exposed to paint above the actionable level.

"And the fact they live in typically older homes is direct evidence paint is responsible for a number of poisonings."

California's Childhood Lead Poisoning Prevention Program is a $22 million project with a staff of 85, including contractors. They take in about 700,000 lead blood tests per year, Courtney said. Children from families receiving public assistance such as WIC and TANIC usually are required to be tested. The law requires all children be tested for blood lead levels at the ages of one or two.

"Research shows poor children are at a higher risk, especially children who receive public assistance," he said.

As an expert witness for defendant Sherwin Williams, Courtney also agreed that lead poisoning can come from "cumulative exposure by various routes." Lead from gasoline, soil, candy, high traffic areas contribute to childhood lead poisoning, Courtney agreed.

Sherwin Williams attorney Michael Pohl argued gasoline was a larger contributor than lead-based paint. Referring to a lawsuit waged by gasoline companies against California to lower the amount of money they have to pay the state for lead prevention each year, Pohl maintained the state forces gas companies to foot 85 percent of the bill because they're the larger pollutant; lead-paint makers pay about 15 percent.

When asked if he thought the calculation was correct, Courtney said, "I have no reason to think otherwise."

Pohl introduced a report written and reviewed, in part, by Courtney for that suit, which said the California Department of Health Services "reviewed available data for determining responsibility and found reasonable bases to apportion ... 85 percent" to the gasoline companies and "15 percent for the architectural coatings industry."

Pohl also questioned the claim that lead paint is a major source of lead poisoning because no isotopic tests were conducted to determine sources of lead, such as paint or petroleum. He concluded that childhood lead poisoning is not a public health crisis, referring to the state's own work that says less than 2% of children tested have blood lead levels of concern. To support his position, Pohl presented a 2009 Associated Press article <http://www.boston.com/news/health/articles/2009/03/02/fewer_children_have_high_lead_levels/> titled Fewer Children Have Higher Lead Levels, that was sent in an email to Courtney and other state health officials. The article states since the 1970s, lead levels in children has declined by 84 percent.

"It has been a remarkable decline ... It's a public health success story," said Mary Jean Brown with the Centers for Disease Control and Prevention in the article.

The defense claims the lawsuit they are fighting is without merit. Because there's so many sources of lead, counsels argue, they question how can the plaintiff's point to lead paint as the primary source of childhood lead poisoning. The plaintiff's claim that while there are other sources, lead paint is a primary cause of childhood lead poisoning and still poses a public nuisance.

"Every source needs to be rid of," said Rebecca Archer, deputy county counsel of San Mateo County, a plaintiff in the suit. "We have programs to stop lead in candy from entering the county, prevent it in packaging, stop it in gas, we don't have a program to abate lead paint."

Prevention, testified Courtney, is the best solution to lead poisoning from soil, candy, and lead paint.

Plaintiff's argue abatement of lead-based paint is the prevention they seek. But, the 10 jurisdictions waging the public nuisance lawsuit allege they don't have the resources to pursue a lead-paint prevention and abatement program. Current and former government workers in California testified about the difficulties of lead prevention due to a lack of resources.

San Mateo County has a $500,000 pilot lead abatement loan program to help fund the removal of lead paint from homes.

"I do not believe the $500,000 is going to be sustainable," said Dean Peterson, Director for Environmental Health of San Mateo County.

Peterson estimates 80 percent of San Mateo County's housing stock was built before 1980, shortly after lead paint was banned.

Despite that statistic, defense attorney Jameson Jones, representing NL Industries, pointed out that in 2012 San Mateo didn't have any cases of lead poisoning.

Robert Mittelstaedt, counsel for Sherwin Williams, argued La Honda Elementary School had an episode "with excessive lead in the water."

He then referred to a file from Peterson's department regarding abatement. Citing a notice to an apartment building to abate a wall known to have lead paint, the notice said, "Lead-based paint is only considered a hazard when it is deteriorated or when a child picks at or eats the paint," questioning the abatement plaintiff's argue is necessary to prevent lead poisoning.

Peterson's department, Mittelstaedt maintained, also received a grant for lead abatement that they couldn't use, but Peterson explained the amount was insufficient to see the project to completion.

"We will not spend money just to spend money," Peterson said.

Beatriz Navarro, a nurse and former case manager for Los Angeles County's CLPP program, testified that she saw more than 200 cases of children with lead poisoning in the six years she worked there. Children with blood lead levels of 20 or higher were referred to her; 5 is the level of concern. Navarro said children with levels above 5 but below 20 were referred out because there are "no resources in L.A. County ... we didn't have enough nurses in CLPP to handle all the cases that came through."

Navarro estimated 75 percent of her cases were children under the age of 2 and a majority of the time lead paint was one of the items she documented as the potential source of lead exposure. Once assigned to a case, Navarro would visit the home and document all the potential sources of exposure to the child.

Glynn Clement, counsel for defendant DuPont, noted that Navarro's cases also documented other potential sources of lead exposure such as candy, foreign medications, pottery and toys. Attorney's argued the suit could abate lead paint, but it wouldn't eliminate the health crisis of lead exposure to children.

Plaintiff's argued, lead paint abatement would be a major step in that direction. Whether its lead based paint or gasoline lead in the soil, witnesses Courtney and Navarro testified that their jobs would be easier if lead were removed from homes.

"There still exists a lot of lead in the environment in California. We have kids coming in from all over the world with risks we need to identify and prevent," said Courtney.

The trial ends its third week of expert testimony for the plaintiff's with David Jacobs, an expert on abatement Thursday. His testimony is expected to continue next week as well.