Update: NL, ConAgra, Sherwin-Williams to file objections to Calif. judge's lead paint ruling

SAN JOSE, Calif. (Legal Newsline) -- A spokeswoman for NL Industries, ConAgra Grocery Products and The Sherwin-Williams Company says the companies will file objections with the California judge who, on Monday, ordered them to pay $1.1 billion to replace or maintain lead paint in millions of homes.

In his long-awaited ruling following a six-week trial this fall, Santa Clara Superior Court Judge James Kleinberg said the one-time paint and pigment manufacturers must shell out the money.

The lawsuit was brought by 10 California cities and counties, including Alameda County, Los Angeles County, Monterey County, San Mateo County, Santa Clara County, Solano County, Ventura County and the cities of Oakland, San Diego and San Francisco.

The federal government banned lead-based paints in the United States in 1978, but the plaintiffs argued that the paint remains in millions of homes and is the primary source of childhood lead poisoning today and that the only remedy for this public nuisance is abatement.

Kleinberg agreed, but dismissed two of the defendants -- Atlantic Richfield Company and DuPont -- from the lawsuit.

"The defendants will file objections with the trial judge," Bonnie Campbell, a spokeswoman for NL Industries, ConAgra and Sherwin-Williams, said late Monday.

"If those are not accepted, we will file a motion for a new trial or mistrial, and if that is rejected we will appeal the court's decision."

The companies have 15 days to file their objections to Kleinberg's tentative ruling.

Before Monday's ruling, the companies had won similar suits in seven different states.

But in his decision, Kleinberg didn't go along with their claims that the lead paint wasn't the entire problem and that other sources of lead contributed to the poisoning.

"The existence of other sources of lead exposure has no bearing on whether lead paint constitutes a public nuisance," the judge wrote in the 110-page ruling. "It does not change the fact that lead paint is the primary source of lead poisoning for children in the jurisdictions who live in pre-1978 housing."

According to Kleinberg's ruling, the $1.1 billion will be placed in a specifically designated, dedicated and restricted abatement fund, which will be administered by the director of the California Childhood Lead Poisoning Prevention Branch.

Monies from the fund then will be disbursed to each of the 10 jurisdictions to be supervised by each county's Board of Supervisors.

"Consistent with their arguments throughout the trial the Defendants rely on statistics and percentages. When translated into the lives of children that is not a persuasive position," Kleinberg wrote.

"The Court is convinced there are thousands of California children in the Jurisdictions whose lives can be improved, if not saved through a lead abatement plan.

"The Court finds that the proposed plan, as amended by the Court, is an appropriate remedy justified by the facts and the law."

But Campbell contends that the judge's decision "is at odds" with California law and other judicial decisions across the country that "have uniformly rejected similar public nuisance claims."

"Beginning with the trial court's refusal to allow a jury to decide the case, as defendants requested, the court has misinterpreted the law," she said. "The decision violates the federal and state constitutions by penalizing manufacturers for the truthful advertising of lawful products, done at a time when government officials routinely specified those products for use in residential buildings."

Campbell said no public health officials recommended any restriction on that use.

"The risks to children alleged today were unknown and unknowable decades ago," the former Iowa Attorney General said.

"The decision rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint, and it conflicts with and threatens to upend California's lead poisoning prevention programs, which work."

She continued, "This decision is more likely to hurt children than help them, and it will likely disrupt the sale, rental, and market value of all homes and apartments built before 1978."

To view the judge's complete, detailed ruling, click here.

Editor Chris Dickerson contributed to this report.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.