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In closing arguments, defendant companies say lead paint plaintiffs failed to prove case

By Ann Maher | Sep 24, 2013

UPDATED: SAN JOSE (Legal Newsline) - Attorneys for one-time lead paint and pigment manufacturers argued during closing arguments Monday that plaintiffs failed to prove their case brought on behalf of 10 California cities and counties.

The five defendant companies - Atlantic Richfield Co., ConAgra, DuPont, NL Industries and Sherwin Williams - are accused of promoting the use of interior lead paint in the first part of the last century despite knowing it would create a hazard today.

NL Industries attorney Don Scott said during closing arguments on Monday that the plaintiffs needed to prove an allegation of deceit in their public nuisance case, but failed to do so.

He said "uncontroverted and undisputed" evidence and data show that medical knowledge evolved over time as did understanding of toxicity thresholds in children. He said what was knowable at the time was reflected in what doctors were writing at the time. Mainstream medicine did not advise against the use of lead paint until the mid-1940s, he said, after it had been removed from the market.

"The thing about facts is that they do not go away," Scott said. "Plaintiffs can choose not to talk about them, but they do not go away."

Santa Clara County Superior Court Judge James Kleinberg, who presided over a six-week bench trial that ended last month, interjected by noting bans on lead paint by European countries between 1900-1930. Given the European ban and American doctors who said "X," he asked Scott if it was his position that "was the end of the issue" or end of medical inquiry.

Scott said U.S. doctors treated the findings with respect, but were watching science evolve. He added that the "pertinent" question is what was known and knowable about hazards of lead in paint.

Attorneys for the People just as vigorously argued that defendants had knowledge of the harms of lead paint and resulting toxic poisoning of children - and intentionally promoted it any way.

Plaintiffs, including 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, seek funding to abate lead paint from homes built prior to 1978 - the year Congress banned its use - at a cost estimated to be in excess of $1.6 billon.

Plaintiffs' attorney Fidelma Fitzpatrick, one of many representing The People of California, called lead paint poisoning an epidemic and one that disproportionately affects poor children.

She said there is "not a credible argument" that paint companies didn't have actual knowledge of the hazards of lead-based paint.

The plaintiffs' proposed abatement of approximately 500,000 housing units in the jurisdictions is "more cost effective than vaccines," Fitzpatrick said. She also said that the benefits of abatement far exceed the costs.

Medical treatment, special education costs, lost lifetime earnings, lost tax revenue, and other costs associated with lead poisoning burden society to the tune of hundreds of billions of dollars, plaintiffs claim.

Attorney Joe Cotchett said a key piece of evidence in the People's case was a Lead Industry Association (LIA) conference held in Chicago in 1937 and attended by paint company-employed doctors and surgeons.

He said those who attended the event, at which the dangers of lead in paint were discussed, were told not to tell anyone about the conference and were told not to take notes.

The defense maintains, however, that there were no secrets involving the Chicago LIA conference - which was also attended by public health officials.

DuPont's attorney Clement Glynn said the plaintiffs misstated the record and misrepresented the facts when it presented its case at trial.

He said the plaintiffs did not prove DuPont promoted white lead pigment knowing it would create public health hazard.

"This Court has a right to expect" supporting evidence, he said, not rhetoric.

Following Monday's proceedings, spokesperson for the defendants Bonnie J. Campbell said in a statement that the plaintiffs failed to make their case.

"The California Court of Appeal (6th District) allowed the plaintiffs' claim to go forward solely on the theory that defendants had promoted the use of white lead pigments in paint on homes long ago 'with knowledge of the hazard that such use would create,', she said. "Under that court ruling, hindsight cannot be used to prove this case. The plaintiffs' case for present-day public nuisance rests on scientific knowledge that changed over the years and was not known or knowable when white lead pigment was marketed for use in homes.

Campbell is former Attorney General of Iowa and led the U.S. Department of Justice's Office on Violence Against Women during the Clinton Administration.

She also said that blood lead levels in California are close to zero due to the state's Childhood Lead Poisoning Prevention Program (CLPP), which is funded in part by the defendants.

She said the program is a public health success story that has resulted in a dramatic reduction in blood lead levels in children.

Kleinberg will render a decision within 90 days.

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