Defense presents first witness in Calif. lead paint trial

By Christina Aanestad | Aug 16, 2013

SAN JOSE, Calif. (Legal Newsline) -- The defense in a lawsuit against one-time lead paint and pigment manufacturers presented its first witness Thursday.

SAN JOSE, Calif. (Legal Newsline) -- The defense in a lawsuit against one-time lead paint and pigment manufacturers presented its first witness Thursday.

Stephen Washburn, principal scientist and CEO of Environ Corporation, testified that lead exposure to children has steadily declined and questioned plaintiffs' claims that lead paint is the primary source of lead exposure to children.

"There are a number of sources we've talked about," Washburn said. "The presence of lead paint; emission of vehicular traffic; lead in plumbing; industrial operations in older areas; possibility of lead in second hand smoke; these are all factors contributing to higher blood lead levels in older housing."

Environ Corporation is an international environmental health consulting agency with clients ranging from wind energy producers to the federal government. As a consultant for defendants NL Industries, Washburn analyzed national and state data regarding childhood blood lead levels. In each instance, he testified, children's blood lead levels have steadily declined, especially in the western United States, where "lead levels are lower than in other parts of the country. Roughly 25 to 30 percent lower."

"When we look over time blood lead levels in children under six, they have been dropping since 1970 and continue to drop over the years," he said.

As a principal scientist specializing in chemical compositions, Washburn served on expert review panels for the U.S. Environmental Protection Agency, the National Institute of Environmental Health Sciences (NIEHS) and the U.S. Army Environmental Center. His testimony countered plaintiff's arguments that childhood blood lead poisoning is a public health crisis.

Ten cities and counties in California -- including Los Angeles County and the cities of San Diego and San Francisco -- filed The People of California v. Atlantic Richfield Company et al., which seeks the companies and parent companies of one-time lead-based paint makers pay for an abatement program-eliminating lead paint from homes in their jurisdictions-to protect public health.

Plaintiffs claim the lead paint is a public nuisance. Defendants include The Sherwin-Williams Company, ConAgra Grocery Products, DuPont and Atlantic Richfield Company. The bench trial is in Hon. Judge James Kleinberg courtroom in Santa Clara County Superior Court.

Since 1987, similar lawsuits were unsuccessfully attempted in several states including Rhode Island, New Jersey, and Missouri. This week the Housing Authority of Baltimore paid nearly $7 million in a settlement for injury due to lead-paint poisoning of six children. In California, defendants argue the one-time lead-paint and pigment manufacturers are the responsible party for the public nuisance of childhood lead poisoning.

"Your testimony that blood lead levels have declined doesn't mean blood lead levels have been eliminated, doesn't it?" asked plaintiff's counsel, Fidelma Fitzpatrick with Motley Rice, the legal firm to successfully sue tobacco companies in the 1990s. Fitzpatrick was legal counsel in similar lead paint suits against the defendants in Rhode Island and New York City.

Washburn agreed. He also testified that while blood lead levels are in a steady decline he didn't know when they would reach zero. He also testified that children living in pre-1978 housing, which is most likely to have lead paint since congress banned it that year, had slightly higher rates of elevated childhood blood lead levels.

Looking at a chart displaying the decline of childhood blood lead levels, Kleinberg asked, "The average blood lead level is higher in older housing?" which Washburn confirmed.

Washburn analyzed the blood lead levels corresponding to the age of the homes that about 30 percent of the children tested lived in. The difference, explained Washburn between children's blood lead levels who live in homes built before 1940 and in homes built after 1978 was a half percent, at most, he testified.

"You call it's fractions, I call it children," argued Fitzpatrick, who then added the numbers of child percentages with elevated blood lead levels in the 10 prosecuting jurisdictions; the total equaled more than 27,000 children.

"That's a lot of kids isn't it?" she asked.

"27,000 is a lot compared to zero," replied Washburn.

Washburn's analysis also showed that black children had higher rates of elevated blood lead levels than Latino and white children, although all levels were in a decline. Latino and non-Hispanic white children had about the same rates of elevated blood lead levels.

Washburn who said his role was to identify sources of lead pollution, not quantify them, also testified to the various other causes of childhood lead poisoning including second hand smoke, gasoline emissions, and lead piping.

NL Industries counsel Andre Pauka -- with Bartlit, Beck, Herman, Palenchar & Scott -- moved a 2011 study by researchers at John Hopkins University into evidence. The study, "Secondhand Tobacco Smoke: A Source of Lead Exposure in U.S. Children and Adolescents," evaluated the relationship between blood lead levels and exposure to second hand smoke. The report found that 14 to 24 percent of children living with one or more smoker in the home had higher blood lead levels than children living with non smokers.

"[Secondhand smoke] may contribute to increased blood lead levels in U.S. children. Lead dust does not appear to mediate this association, suggesting inhalation as a major pathway of exposure. Eliminating SHS exposure could reduce lead exposure in children," stated the conclusion.

Plaintiffs' counsel Fitzpatrick argued California has the second lowest rate of smokers in the nation.

Pauka also moved two reports "Lead (Pb) legacy from vehicle traffic in eight California urbanized areas: Continuing influence of lead dust on children's health" by Professors Howard Milke, at Tulane University in New Orleans, Mark Laidlaw at the Macquarie University in Sydney Australia and "Tragedy of the Temporal Commons: Soil-Bound Lead and the Anachronicity of Risk" by researchers at University of California at Irvine that assess lead in gasoline as a major source of lead exposure.

An estimated 387,527 metric tons of of lead emissions were emitted between 1950-1982 in California according to Dr. Milke's article. The second study at U.C. Irvine assessed the lead levels in Pacoima, a community in southern California.

"The team found both total and bioavailable lead to be markedly higher in areas close to major highways, almost 20 years after leaded gasoline had been completely phased out," stated the U.C. Irvine report, finding elevated lead levels in closer proximity "next to highways than elsewhere."

Washburn testified that although leaded gas was first phased out in the 1970's and continued through the 1980s, lead emissions from the gasoline settled and concentrated in soil near locations with high vehicle traffic-highways.

"What this says is those emissions from 1970s continue to be present in mild compounds. Unlike other organic compounds lead cannot be destroyed and has to stay in the soil," he explained.

Washburn continued to summarize the reports authors expressing "concern" the "focus on childhood lead exposure has been dominated by lead paint, when in fact the soil is a long standing repository of lead," which he summarized the cause to be vehicle emissions.

"Clearly the source of elevated blood lead levels are unrelated to lead levels in the home," he said.

The lead paint trial begins its fifth week of testimony Monday. Kleinberg asked attorneys to wrap up their arguments next week by Aug. 22 or return to court after Labor Day.

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