Calif. judge increases cost of lead paint abatement fund by $50 million

SAN JOSE, Calif. (Legal Newsline) - A California judge issued his final statement of decision against a group of former lead paint manufacturers Tuesday, raising the cost of a required abatement fund by $50 million.

The final decision comes days after the five defendants in the case -- NL Industries Inc., ConAgra Grocery Products Company, The Sherwin-Williams Company, Atlantic Richfield Company and DuPont -- filed objections to Santa Clara Superior Court Judge James Kleinberg's Dec. 16 proposed statement of decision.

Originally, the judge ordered NL Industries, ConAgra and Sherwin-Williams to pay $1.1 billion to replace or maintain lead paint in millions of homes in California. Atlantic Richfield and DuPont were dismissed from the lawsuit.

In his updated, 111-page final decision, Kleinberg ordered the three companies to pay out $1.15 billion.

Click here to read the full decision.

"Basically, he re-did a calculation that changed the amount of money it would cost to do the lead abatement, adding another $50 million," explained Fidelma Fitzpatrick, a Motley Rice attorney and who served as lead counsel for the 10 cities and counties during the six-week trial this fall.

The lawsuit was brought by 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.

Last week, the defendants, including Atlantic Richfield and DuPont, filed their objections to the judge's tentative ruling.

Bonnie Campbell, a former Iowa attorney general and spokeswoman for NL Industries, ConAgra and Sherwin-Williams, said the defendants plan to appeal Kleinberg's final decision.

She said it "flies in the face of every local, state and federal policy recommendation and regulation" regarding lead-based paint.

"The ruling declares that there is no safe lead level, but fails to recognize common sources of lead not from paint in parks, playgrounds, streets, water and air," Campbell said in a statement Wednesday.

"This ruling is judicial overreach that improperly takes over the role of the legislature. It creates a massive new public works project that rewards landlords who do not comply with the law. It also fails to consider the many adverse impacts on California's housing market, and it potentially causes more harm than good to children.

"The decision is wrong on the facts and wrong on the law. It is a bad model that courts across the country have rejected time and again."

Fitzpatrick is not surprised by the defendants' response.

"I think what's going to happen is they're going to drag this thing out for as long as possible," she said.

Instead of creating more litigation, Fitzpatrick said the companies should come to grips with the fact they're going to be held liable and "start coming to the table."

"I would certainly hope (they would settle)," she said. "I think it's the responsible thing to do. But, of course, I don't expect them to."

Settling definitely is not an option, the companies said.

"We don't have any intention of settling this matter when we believe we have very strong grounds for our objections, as well as any appeal," said Tony Dias, an attorney for Jones Day and who represents Sherwin-Williams.

Campbell agreed.

"I think I can say the same for the other companies," she said Tuesday, ahead of Kleinberg's final decision. "I've never heard any suggestion of settling, and with good reason. We believe, absolutely, that the judge's decision is wrong on California law and the facts of the case.

"It's important to take a stand when you know you're right, and we believe strongly that we will prevail in the end."

Campbell noted that in the 25 years of litigation against the companies, they have prevailed each time. On this particular claim of public nuisance, the companies have prevailed in seven other jurisdictions, she said.

"I think that's important to note," she said. "You don't settle when you have a very significant issue at stake."

Fitzpatrick feels just as strongly about her own clients.

"It's certainly a gamble for us," she said of the 13-year fight. "But we stick with it because we have a commitment to these children, these clients. We're trying to do the right thing."

More than likely, the defendants will file motions for a new trial with Kleinberg. Fitzpatrick said she doesn't expect they'll be successful.

After that, the next step is California's Sixth District Court of Appeal.

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