LEGAL NEWSLINE

SAN JOSE, Calif. (Legal Newsline) - In the high stakes lead paint public nuisance case culminating in Santa Clara County Superior Court, both sides will make closing arguments Monday before Judge James Kleinberg.

The 10 city and county plaintiffs - 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 - are expected to argue they have met a burden of proving their case by a preponderance of evidence.

Among other things, a team of attorneys for the plaintiffs will argue that the five defendant companies knew or should have known about the hazards created by the use of lead paint in homes, but promoted it anyway. They seek abatement in approximately 500,000 pre-1978 built homes in the jurisdictions and estimate the cost at $1.6 billion for inspection and abatement if the public entities implement the program. Plaintiffs say it would cost $2.4 billion if implemented by the defendants.

Their plan calls for the creation of a fund administered by the public entities.

Defendant companies - Sherwin-Williams, NL Industries, ConAgra Grocery Products, DuPont and Atlantic Richfield Company - are expected to fiercely defend their position, saying plaintiffs did not meet a necessary test set forth by the state's Sixth District Court of Appeal.

The paint companies will argue that the Sixth District allowed the 13-year-old case (that originally started as a negligence and product liability case ) 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.

The manufacturers will also 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 proposed statement of decision filed on Sept. 13. "The record does not support such a finding."

The defendants contend they never hid 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 statement of decision. "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 will 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 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.

The six week trial got under way July 15 and concluded Aug. 22. Kleinberg is expected to issue a decision within 90 days of closing arguments.

Jessica Karmasek contributed to this report.