SAN JOSE – Nearly three years ago, a California judge ordered a group of three paint makers to pay $1.15 billion to 10 California cities and counties to remediate what the judge decided was the “public nuisance” of lead paint in homes.
Next week, the manufacturers will get their chance to explain to an appeals court why that decision was poorly reasoned, rife with legal errors, and should be tossed.
On Thursday, Aug. 24, attorneys for The Sherwin-Williams Company, NL Industries Inc. and ConAgra Grocery Products Company will square off against attorneys for the California cities and counties before a three-judge panel of the California Sixth District Court of Appeals in San Jose in the years-long legal dispute over whether manufacturers should be held liable for what the municipal governments assert are costs associated with removing lead paint in homes and other residential buildings.
Plaintiffs include the counties of Alameda, Los Angeles, Monterey, San Mateo, Santa Clara, Solano and Ventura and the cities of Oakland, San Diego and San Francisco.
In 2013, at the end of a six-week trial and after 13 years of litigation, Santa Clara Superior Court Judge James Kleinberg had ruled for the municipalities, saying the manufacturers must pay to remove or maintain lead paint in millions of homes, because the presence of the paint alone constitutes a “public nuisance” under the law.
In 2014, Judge Kleinberg issued a final order, setting the judgment amount at $1.15 billion.
The judge’s ruling had come despite rulings in seven other states in favor of the paint sellers.
After the judge later rejected the companies’ requests to alter the judgment or grant a new trial, the companies appealed in 2015.
The companies, which had made or sold paint containing lead in the past, argued the ruling falls far short under the law, particularly of satisfying a standard established by the Sixth District Appeals Court for the case.
Specifically, the appeals court in 2006 had said the case should be decided on the question of whether the companies had “affirmatively promoted white lead pigments for use in interior residential paint while knowing that such use would create a public health hazard.”
In their appeal, the paint sellers asserted the plaintiffs had come nowhere near actually meeting that standard.
“They could not and did not prove the case that they pleaded and told this court they were going to prove,” Sherwin-Williams asserted in an appellate brief filed in 2015.
The federal government banned lead-based paints in the U.S. in 1978, but the plaintiffs argued the paint remains in millions of homes and is the primary source of childhood lead poisoning today. They said the only remedy for this public nuisance is abatement.
Kleinberg agreed, declaring pre-1978 dwellings “public nuisances” because they contain paint with lead in their interiors.
The paint companies, however, said such a finding is not backed by any law, and the California counties and cities never backed their assertion that the companies actively deceived its customers or somehow knew more than the state and federal governments that never declared the mere presence of lead paint in homes a “public nuisance” subject to government action to abate.
“The People simply want to place defendants on the wrong side of history as science changed,” lawyers for NL Industries wrote in 2015. “Lead paint had supporters and detractors for most of the 20th Century. With the luxury of hindsight, the People embrace the side of those opposing lead paint in the past because today’s science takes that side.”
The paint company defendants are defended by the firms of Jones Day, of Pittsburgh, Los Angeles and Menlo Park, Calif.; Bartlit, Beck, Harman, Palenchar & Scott, of Chicago and Denver; McManis, Faulkner & Morgan, of San Jose; Kirkland & Ellis, of Washington, D.C.; Greve, Clifford, Wengel & Paras LLP, of Sacramento; Ruby & Schofield, of San Jose; and McGrath, North, Mullin & Kratz, of Omaha, Neb.
The plaintiff cities and counties are represented by county and city attorneys, as well as by attorneys with the firms of Motley Rice, of Providence, R.I., and Cotchett Pitre & McCarthy LLP, of Burlingame, Calif.