LEGAL NEWSLINE

SAN JOSE, Calif. (Legal Newsline) -- Historian Dr. Colleen Dunlavy testified Wednesday in Santa Clara County Superior Court that if someone has white lead carbonate on their California painted wall it did not come from a Sherwin Williams product.

Dunlavy, a University of Wisconsin professor, said the company never had used white lead carbonate pigment as a base for interior paints. She, however, cited an exception of seven formulas of floor paint produced between 1910-1912.

Sherwin Williams is one of the defendants fighting a lawsuit brought by 10 California cities and counties seeking a declaration of public nuisance in pre-1978 built private residences. The 13-year-old case seeks more than $1.2 billion in monetary damages for an abatement program.

The jurisdictions pursuing the case are assisted by outside counsel, namely attorneys from well known toxic tort firm Motley Rice, as well as others.

One of the points the plaintiffs must prove is that the paint companies promoted the use of white lead pigments in residential paint during the first half of the last century knowing it would create today's alleged public nuisance.

During the course of the trial, now into its sixth week, plaintiffs have presented witnesses who have said there is no safe blood lead level. They have argued that elevated blood lead levels impact cognition and academic achievement in children.

Defendants have argued that blood lead levels in California are close to zero and are lower than the national average. They also argue that leaded paints were a legal product when they were sold; were taken off the market before a government mandate and that the currently known risks to children were "unknown and unknowable" when lead paint was sold.

Dunlavy was questioned by Sherwin Williams attorney Paul Pohl who asked about enamels and dual use paints -- those that could be used for interiors and exteriors.

White lead carbonate was not used in enamels, she said, with one exception -- in an Old Dutch paint from 1912 that contained less than 1 percent. She said seven colors of a dual use paint produced between 1941 and 1943 had white lead carbonate pigment, but not a base pigment.

She also said the company never promoted white lead carbonate to other paint manufacturers.

Plaintiffs' attorney Fimelda Fitzpatrick of Motley Rice locked horns with Dunlavy during cross examination involving a Sherwin Williams' paint guide from 1923 promoting the company's "SWP" line of paints -- including exterior paint that would have had lead content.

Fitzpatrick challenged Dunlavy's assertion that if white lead carbonate existed on a California wall it could not have come from a Sherwin Williams' product.

"It could have been a Sherwin Williams product," Fitzpatrick said.

Dunlavy said the paint guide was to be taken to a trained dealer who would provide the correct paint based upon the intended use.

"Where does it say that?" Fitzpatrick said

Dunlavy repeated that a paint dealer "would explain which formula would be proper."

The exchange between Fitzpatrick and Dunlavy was finally interrupted by presiding Judge James Kleinberg who said, "I have your point and the witness's point."

Wednesday's proceedings also included the cross examination of DuPont's witness, historian Dr. Glenn Bugos. Attorney Peter Earle questioned Bugos about DuPont's presence in California's paint market and whether the company or one it acquired had sold leaded paint or products in the early part of the 20th century.

Bugos testified that nothing in the historical record indicates the company had lead paint products for sale in California.

He also previously had testified that DuPont's interior paints never contained white lead pigments.

Dr. Gordon Bierwagen, a paint chemist and North Dakota State University professor, testified about the qualities of white lead pigments. He said that exterior paints were mixed to be resistant to the elements and that applying exterior on an interior would be "wasting" the performance since exterior was historically more expensive.

He said that the pigment titanium dioxide, as a successor to white lead pigments, was accepted commercially in the late 1950s. Before then he said it was not feasible to have had white lead removed from paint and still have good paint.

He also said that paint market was "very conservative" and that it could take between eight and 10 years of lab and field study to implement change.

Bierwagen said that painting bid proposals issued by federal, state and municipal governments were still calling for white lead pigment in their specifications through the 1960s.

He said the state of California was teaching painters to use white lead pigment in 1950. He cited Los Angeles in 1958 calling for white lead paint in a project.

As late as 1972, federal government specifications on some exterior projects still called for white lead pigment, he said.