California Supreme Court

SAN FRANCISCO – Defendants in a long-running action taken by municipalities and counties in California over who should pay for lead removal in properties are planning to seek a California Supreme Court review.

An appellate court last month turned down the defendants' request for a rehearing over a judgment that pared back on a ruling by a lower court, but one that still left three paint-making companies facing potentially hundreds of millions of dollars in costs.

In an action that began 17 years ago, 10 cities and counties sued Sherwin-Williams, ConAgra Grocery Products Co. and NL Industries Inc. under public nuisance laws, alleging they essentially endangered the public because they knew the lead in their products was dangerous.

Santa Clara Superior Court Judge James Kleinberg ruled in 2013 that the three companies were liable for the lead paint in homes built prior to 1981. In November, the California Sixth Appellate District Court ruled that they were only liable for those homes built pre-1951.

As it stands, the plaintiffs are facing a bill of anywhere between $400 million and $700 million, instead of the original $1.15 billion judgment. Calculating the liability following the appellate court decision will be the job of the trial court.

But the defendants do not agree with the appeals court decision nor believe they are liable for those costs. They will begin filing arguments to the Supreme Court as early as Dec. 26.

Tony Dias, a partner with Jones Day, which represents The Sherwin Williams Co., said his client's position is that the three-judge appeals panel made errors in coming to its judgment and that was the reason to ask for rehearing. It was turned down in a one-sentence ruling, Dias pointed out.

The defendants' essential argument is that three companies cannot be held liable for all lead abatement from houses built in the early to mid-20th century, and that the appeals court is usurping the power of the legislature to decide on remediation programs.

"We are moving forward," Dias told the Northern California Record. "We now petition the Supreme Court."

"These are issues of substantial significance, to property owners, individuals and companies," Dias added. "Every other state that has reviewed this issue, its Supreme Courts have decided against the extension of public nuisance."

Dias also believes the California case raises additional issues his client, and their co-defendants, think the Supreme Court should want to review.

In particular, the attorney raised the specter of private property owners, and small businesses, being accused of public nuisance if they live or operate out of buildings that may have lead paint. They could be blacklisted.

"It creates massive government intrusion for homeowners," Dias said.

It also exposes every company to a public nuisance liability, he added, citing the example of a company that advertises and sells bicycles which may be held liable "because children skin their knees."

Following the appeals court ruling, Santa Clara County Assistant County Counsel Danny Chou said in a statement that the decision provides for the removal of lead paint from many homes.

The decision states these home "contain this dangerous toxin and holds the paint companies responsible for the danger that they created,” Chou said. “The court has sent a thundering message about the protection that California provides to its most vulnerable citizens.”

Maryann Marino, southern California regional director of the California Citizens Against Lawsuit Abuse (CALA), told the Northern California Record: "I just do not think that that public nuisance type of lawsuits is the right way to correct the problem, if there is one."

She added, "It is a way for the cities and councils to take an opportunity to make money on the back of others, and it is going to be at the expense of jobs."

The defendants' lawyers noted that seven other states have already rejected similar public nuisance claims.  

Cases in Ohio, Rhode Island, Missouri, New Jersey, Illinois, New York and Wisconsin, some resolved at the state Supreme Court level, were all rejected or voluntarily dismissed.

"California is the public nuisance case still in litigation," Dias said.

The three judge appeals court panel ruled that all three companies were involved in the Lead Industries Association (LIA).

“The LIA’s extensive advertising campaigns, in which all three defendants participated, affirmatively promoted to painters, architects, retailers, and consumers the use of lead paint on residential interiors, and each defendant also individually promoted to consumers lead paint for use on residential interiors in the 10 jurisdictions,” the decision states.




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