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Attorney: Abatement would mean big bucks for plaintiffs' lawyers

By Jessica M. Karmasek | Aug 13, 2013

SAN JOSE, Calif. (Legal Newsline) -- The fact that blood lead levels in California are at their lowest in decades hasn't stopped a group of cities and counties, and their attorneys, from pursuing a public nuisance case against paint manufacturers.

The bench trial in The People of California v. Atlantic Richfield Company et al. is now in its fifth week.

Ten California 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 -- want one-time lead paint and pigment manufacturers to pay for the abatement 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 remedy for this public nuisance, they argue, is abatement.

The defendants -- The Sherwin-Williams Company, NL Industries, ConAgra Grocery Products, DuPont and Atlantic Richfield Company -- contend that the lawsuit is without merit.

Among their arguments, that blood lead levels, or BLLs, in the state are close to zero and that no public health threat or "epidemic" exists.

In fact, no one has testified yet that any one person or child in the 10 jurisdictions has become sick from lead paint, noted Anthony Dias, an attorney at Jones Day, which is representing Sherwin-Williams in the lawsuit.

Much of the testimony thus far has been about generalized data and how it relates to the public nuisance suit.

Average BLLs stand at historic lows in California -- less than 1.0 micrograms per deciliter -- and are lower than national averages -- 1.2 micrograms per deciliter.

The defendants also take issue with the source of lead.

The companies have argued that other exposures are more likely to elevate a person's BLL than paint.

"There are a lot of sources of lead in any state," Dias said. "Different regions have different things that predominate."

For instance, lead can be found in gasoline and emitted from smokestacks, he said.

Dias pointed to a report written by Dr. David Jacobs, research director at the National Center for Healthy Housing.

Jacobs testified for the plaintiffs last week.

"Another important source of lead in dust and soil is the estimated 5.9 million tons of gasoline lead emitted from motor vehicles before its removal in the mid-1980s," according to a 2009 report that Jacobs co-authored.

Since lead from vehicle emissions eventually settles down onto the ground and soil, the defendants argue that the plaintiffs can't sufficiently prove lead-laden soil near homes is a result of lead-based paint.

"Because the success has been so great in reducing the incidence (of lead illness), this really becomes important," Dias said of sourcing.

On Thursday, Jacobs testified that the cost of a lead paint abatement program for the 10 jurisdictions could exceed $1.4 billion.

Jacobs said under an abatement plan, jurisdictions would prioritize properties to qualify for a defendant-funded program. He said priorities could include homes where children have elevated BLLs or with properties that have 10 or more code violations.

The defendants likened Jacobs' proposal to welfare for slumlords.

"If I'm a property owner then I can avoid the district attorney and get all this paid for, for free by five companies, as long as I get on that priority list," Robert Mittlestaedt, counsel for Sherwin-Williams, said in court last week.

"The way is to get 10 violations -- that's the incentive it would create."

But there's also a big incentive for the plaintiffs' lawyers.

Dias said if the plaintiffs prevail and abatement for the jurisdictions ends up costing closer to $2 billion, the plaintiffs' attorneys are looking at millions in fees.

"The agreements are a little different for each county or city," he explained. "But all of them cover about 17 or 18 percent of any recovery."

If the plaintiffs end up winning big, they also could be setting themselves up for future liability at public sites, Dias pointed out.

"This whole time, they're talking about kids and kids in these homes, but the one place every kid is in, for sure, is school," he said, noting there have been reports of lead in water fountains at schools.

But Dias is confident Judge James Kleinberg, a former business litigator, will end up siding with his client and the other defendants.

"We believe that based on the facts and the law in this case that we should prevail," he said, pointing to a string of other, similar public nuisance cases that have either been voluntarily dismissed or rejected.

In Rhode Island, the state Supreme Court found deficiencies in the state's public nuisance claim and rejected the case, which was filed by the state's attorney general at the time.

In Ohio, a common pleas court dismissed a public nuisance case filed by the city of Toledo.

In New Jersey, the state Supreme Court rejected a public nuisance claim brought by 26 municipalities.

In Missouri, the state Supreme Court shot down a public nuisance lawsuit filed by the city of St. Louis.

In Chicago, a state appellate court dismissed a case brought by the city.

In New York, New York City voluntarily dismissed claims brought against the companies, including a claim of public nuisance.

And in Milwaukee, a jury declined to find NL Industries, one of the defendants in the current case, liable for having created a public nuisance.

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

"We believe the plaintiffs can't, and won't be able to, prove their case here," Dias said, explaining that the seven other cases clearly show that the public nuisance theory doesn't work against product manufacturers.

"Some argue that the laws in California are different enough and would allow it, but we don't see that that those differences change the strength of our case."

Still, Dias said the defendants plan on filing motions for nonsuit, or summary judgment, Tuesday in hopes that Kleinberg will dismiss the case.

But he acknowledged that it's not uncommon for a judge in a bench trial to dismiss such a motion and request to hear more evidence.

Depending on Kleinberg's decision, the trial could pick up Thursday. The defendants would then present their side.

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

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