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Monday, February 24, 2020

Former lead paint, pigment manufacturers say Calif. plaintiffs failed to prove their case

By Jessica M. Karmasek | Sep 14, 2013


SAN JOSE, Calif. (Legal Newsline) -- The defendants in a six-week trial over lead paint -- one-time paint and pigment manufacturers -- contend, in filings late Friday, that the plaintiffs have not proven their case.

Friday was the deadline for all parties in the lead paint trial, which wrapped up last month, to submit their proposed statements of decision, as requested by Santa Clara County Superior Court Judge James Kleinberg. Kleinberg is presiding over The People of California v. Atlantic Richfield Company et al.

In their statements, the defendants -- The Sherwin-Williams Company, NL Industries, ConAgra Grocery Products, DuPont and Atlantic Richfield Company -- argue the court should find in their favor. They contend the plaintiffs, 10 cities and counties, failed to prove their case.

"The proof at trial did not establish that: (1) at any time an alleged ARC predecessor promoted white lead carbonate pigment, it had (or could have had) knowledge of the concern with low-level asymptomatic lead exposure that Plaintiffs say establishes a public nuisance and warrants abatement today; (2) any, even blameless, promotion or sale by an alleged ARC predecessor ever reached any of the jurisdictions and was a substantial factor in causing lead to be present; or (3) white lead carbonate pigment in paint is widely present in housing in the jurisdictions today and constitutes a public nuisance," Atlantic Richfield Company, or ARC, wrote in its 30-page statement.

The defendants also noted that the state's Sixth District Court of Appeal allowed the plaintiffs' claim to go forward solely on the theory that manufacturers had promoted the use of white lead pigments in paint on homes long ago "with knowledge of the hazard that such use would create."

But the manufacturers argue that hindsight cannot be used to prove this case under the Sixth District opinion.

"Plaintiffs are required to prove a causal connection between promotions of white lead and the alleged public nuisance harm today," Sherwin-Williams wrote in its 36-page statement. "The record does not support such a finding."

Also, the defendants contend they never hid any information about health risks of lead paint from public health officials, government or the public.

"At trial, the People offered no evidence that DuPont engaged in any attempt to stop government regulation or to hide the dangers of lead from the government and the public," DuPont wrote in its 27-page statement. "Indeed, the People conceded that DuPont had no non-public information about potential hazards posed by lead.

"Hence, DuPont could not have acted to 'hide' those hazards from the government or the public."

The manufacturers also argue that when white lead pigment was marketed it was a legal product in great demand for private homes and public buildings because it was washable and durable.

Advertisements placed by the former manufacturers at the time were both truthful and lawful, the defendants contend.

The 10 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 the defendants to pay for the cost 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 only remedy for this public nuisance, the cities and counties argue, is abatement.

If Kleinberg sides with the plaintiffs, the 13-year legal battle could end up costing the defendants $1 billion in abatement fees.

Closing arguments in the case are set for Sept. 23, after which Kleinberg is expected to issue a decision within 90 days.

From Legal Newsline: Reach Jessica Karmasek by email at

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