Lots of data to process for Calif. lead paint judge

By Ann Maher | Aug 23, 2013

SAN JOSE, Calif. (Legal Newsline) -- A watershed decision expected before the end of the year may come down to how one individual processes volumes of complex analyses of complex data relating to the use, promotion and manufacture of lead paint in the last century and its impact on children today.

In a case that took six weeks to try after 13 years of litigation, Santa Clara County Superior Court Judge James Kleinberg also will measure the credibility of expert witnesses and their theories in The People of California v. Atlantic Richfield, et al.

Not only do the plaintiffs have to prove that a public nuisance exists in pre-1978 built private residences in the 10 California cities or counties seeking abatement costs of more than $1 billion, they have to prove that 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.

That burden of proof is high and cannot be met, according to the defendant companies that produced the legal and in-demand leaded paints in the first part of the last century, Atlantic Richfield Co., The Sherwin Williams Co., DuPont, NL Industries and Con Agra.

They say they never hid any information about risks of lead paint from public health officials, the government or the public. The companies further contend that blood lead levels in California children have declined in recent years and are now close to zero, thanks to the state run Childhood Lead Poisoning Prevention Program.

Further, the companies point to other non-paint sources of lead including residual lead from gasoline, older plumbing, industrial sources, water, proximity to traffic and second-hand smoke that could explain elevations in blood lead levels.

Among the six witnesses who testified Thursday -- the final day of trial -- the hardest-charging came as plaintiffs' rebuttal witness Dr. Nicholas Jewell, a bio statistician and professor at University of California-Berkeley, tore into a key portion of the defense.

Jewell said a defense analysis of elevated blood lead levels in the 10 jurisdictions pursuing the case was "misleading" because data collected was not representative of the entire population.

He said that even though data collected in a study produced by scientist Stephen Washburn came from government sources (Response and Surveillance System for Childhood Lead Exposure), it was not reliable because children at greater risk for lead exposure and limited access to healthcare may not have been accounted for in the study.

Jewell called the study "distorted" and that it should not be used to inform public policy.

But defense attorney Don Scott countered that the RASSCLE data Washburn used to produce his analysis is also relied upon by many government agencies and it shows there is a decreased prevalence of elevated blood lead levels in California children.

He also pointed out that national figures on childhood blood lead levels from the National Health and Nutrition Examination Survey, which he said has been ignored by plaintiffs, also show declining blood lead levels.

Also on the stand Thursday was Alameda County Community Development Agency Director Mark Allen, who said resources are needed to remove lead from homes in some 30,000 residences in his county.

He also said there is a lack of "political will" to prioritize lead paint abatement. He blamed the recession for a lack of resources to deal with the problem.

"Who is going to provide the resources for the lead paint that put children at risk," he said.

On cross examination, defense attorney Robert Middlestaedt pointed out that Allen's agency budget had almost doubled.

Allen said, "There are resources" but "not the political will" to remove lead paint surfaces.

Allen did not answer whether any studies had been done to determine what sources of lead have caused elevated blood lead levels in his community.

Dr. David Teece, University of California-Berkeley professor and expert on business strategies and innovations, testified that Sherwin Williams helped the country "wean off" use of leaded paint through its introduction of prepared paints that could be applied by homeowners.

He said the company's efforts made an "end run" around master painters, who in the early part of the last century mixed their own paints and "had a penchant for white lead and oil."

The company's product Kem Tone revolutionized the industry by changing who could apply paint (namely homeowners) and "laid the foundation for getting lead out of paint," he said.

He also said that the government would not have been able to ban lead paint without hurting the economy had it not been for Sherwin Williams' development of new water -based prepared paints.

In her cross examination, plaintiffs' attorney Fidelma Fitzpatrick asked if Sherwin Williams promoted lead paint from 1900-1950, to which Teece responded the company promoted paint with lead in it.

Industrial hygienist and lead paint abatement handler Benjamin Heckman testified that intact lead paint is not hazardous.

A defense witness, Heckman said there are a range of options available for dealing with interior lead paint in homes built before 1978, but as long as painted surfaces are maintained, windows, doors and floors do not necessarily need to be replaced.

Heckman said that some of the consequences he has seen in lead abatement projects involving replacement are discovering other hazardous materials, such as asbestos and mold. He said replacement projects are intrusive and costly.

He disagreed with the plaintiffs' proposed abatement costs of $2,007 per unit.

He said he could not estimate what abatement would cost in the 400,000-500,000 residences in the suing jurisdictions.

"I believe the estimated cost is unrealistic given the scope and complexity of the work in an older housing stock," he said.

On cross examination, plaintiff attorney Fitzpatrick challenged Heckman on the future of homes with lead based paint.

"Inspection today with intact paint doesn't mean it will be in a week, month or year," she said.

" It's safe if you're code compliant," Heckman said.

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