Northern California Record

Thursday, February 27, 2020

Oral arguments still not set in appeal of $1.15 billion lead paint case

By Ann Maher | Sep 30, 2016

Law money 09

SACRAMENTO - Paint manufacturers ordered to abate lead paint inside millions of private residences across the state still await hearing on appeal nearly three years since a trial court entered a $1.15 billion judgment.

The behemoth public nuisance case brought by 10 local government units with the help of outside counsel - and the resulting bench verdict - have been sharply criticized for a number of reasons including questionable legal theories, conflicts of interest, lack of an existing public health crisis and the likelihood that abatement could create actual harm to the public by stirring up leaded paint dust.

Some of those criticisms were echoed at a Civil Justice Association of California (CJAC) conference this week, including from an attorney representing one of three defendants on the hook for the billion dollar judgment.

Representing Sherwin Williams, Tony Dias of Jones Day in Washington said that in spite of the case entering its 17th year, the cities and counties pursuing it haven't changed anything in their inspection protocols. He said that, in fact, many communities have considered shutting down lead-related public health offices as the state has effectively reduced lead poisoning through "the best, most comprehensive" prevention programs.

Blood lead levels in California are close to zero, according to trial testimony, a public health success story that defendants attribute to the state's Childhood Lead Poisoning Prevention Program (CLPP), which they partly fund.

Dias said the case is being driven by trial lawyers, rather than being about fixing a real public health crisis.

Attorneys from Mount Pleasant, S.C.-based Motley Rice teamed with prosecutors in Alameda, Los Angeles, Monterey, San Mateo, Santa Clara, Solano and Ventura counties and the cities of Oakland, San Diego and San Francisco in taking on Atlantic Richfield, DuPont, ConAgra, NL Industries and Sherwin Williams in Santa Clara County Superior Court.

The plaintiffs are suing to recover costs for medical care, education programs for children, inspections and abatement. They accuse defendants of promoting the use of interior lead paint in the first part of the last century despite knowing it would create a hazard today.

Santa Clara County Superior Court Judge James Kleinberg held a six-week bench trial ending Sept. 23, 2013, and issued his ruling months later on Jan. 7, 2014.

He dismissed Atlantic Richfield Company and DuPont from the lawsuit.

Among many things, at closing the paint companies argued that plaintiffs did not meet a burden the Sixth Appellate District Court held them to in a previous appeal when the case was proceeding on negligence and product liability claims. The appeals court said the case could 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 companies argued that hindsight could not be used to prove the case, per the Sixth Appellate District.

"Plaintiffs are required to prove a causal connection between promotions of white lead and the alleged public nuisance harm today," Sherwin Williams argued in court filings. "The record does not support such a finding."

Kleinberg was not moved.

"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," he wrote.

While seven other similar public nuisance cases brought in Illinois, Missouri, New Jersey, New York, Ohio, Rhode Island and Wisconsin have been either voluntarily dismissed or rejected by juries or state supreme courts, People of the State of California v. Atlantic Richfield Co. is the last remaining lead paint public nuisance case active in the country.

Kim Stone, president of CJAC, said that outside counsel who benefit from the shield of government on a short term basis and go after companies who sold legal products that were understood to be safe at the time they were sold, is a dangerous combination. She said she has more faith in prosecutors whose pay is unaffected by case outcome, than in lawyers motivated by a payday.

"When prosecutors give their vast governmental power to private attorneys who only get paid if they win - and might make nothing if not - those attorneys might not have the same ethical motivation to be fair," she opined on the subject.

She further stated that the lead paint case is problematic because there is no clear limit to the public nuisance liability theory.

"Where does liability end?" she stated.

While it has been a little more than three years since the trial in Kleinberg's court ended and about two and a half years since defendants filed notice of appeal, oral arguments as the Sixth Appellate District still have not been set.

A spokesperson for Sherwin Williams said it's possible the court could set arguments this year, but there is no way to know for certain.

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Organizations in this Story

Santa Clara County Superior CourtCivil Justice Association of CaliforniaSherwin Williams Paint Co.