SAN FRANCISCO – Three companies on the hook for a potential billion dollar judgment have asked the U.S. Supreme Court to review a public nuisance case filed by 10 counties and cities in California mandating they clean up lead-based paint in dwellings.
In a petition for writ of certiorari filed July 16, the companies contend the case amounts to a deep-pocket breach of justice, a precedent that could spread to other industries.
“The proceedings make a mockery of core tenants of our judicial system,” the attorney for defendants Con-Agra and NL Industries asserts.
In the meantime, the companies have gathered enough signatures for a bond issue to be voted on this November asking California taxpayers to provide $2 billion to clean-up lead-based paint----so the companies won’t have to pay.
Con-Agra and NL Industries, joined by a third defendant Sherwin-Williams, argue that the outcome of the case has far-reaching implications, and called it a radical departure from the norms of due process and free speech. If allowed to stand, the companies say plaintiff lawyers and city and state governments would reap massive court awards without the need to prove cause.
ConAgra is a grocery packaged foods company headquartered in Chicago and never produced paint, but acquired the liabilities of W.P. Fuller & Co., a San Francisco paint maker. NL Industries is a lead-smelting company based in Houston, while the nationally known paint company Sherwin-Williams is based in Cleveland.
Attorney for the petitioners, Raymond A. Cardozo of the San Francisco law firm of Reed Smith LLP, wrote that holding the companies liable for “retroactive public nuisance,” paint that in some cases was applied as far back as 100 years ago, is a travesty of justice and a denial of due process.
“Imposing massive and retroactive public nuisance liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the Due Process Clause,” the petition states.
The petition added that the liability judgment was also a violation of the First Amendment.
Defendants turned to the nation's highest court after the California Court of Appeal on Nov. 14, 2017, affirmed a 2014 California Superior Court judgment in Santa Clara County holding the companies liable for the lead-based paints they distributed due to the potential toxic harm it could cause children living in homes built before 1951.
The California Supreme Court in a divided vote denied review of the case on Feb. 14, 2018.
An original judgment held the companies liable for homes built before lead in paint was prohibited in 1978, but narrowed the ruling to homes built before 1951.
The judgment against the companies require them to pay the state to remove lead-based paint from homes and buildings in some of the state's most populous areas including San Francisco and Alameda and San Mateo counties.
The petition asking the Supreme Court to review argues that the plaintiffs have been excused from having to demonstrate the presence of deteriorating lead paint at even a single house. They also have been held liable for promoting the products through literature including a paint brochure dating from 1931 and a few trade advertisements 75 years old.
It also notes that those few marketing materials were produced when lead-paint use was common, lawful, and encouraged to be used by the State of California itself.
“None of this is consistent with basic notions of fairness or fundamental constitutional guarantees," the petition states. “It did not matter that the decades old speech concerned a product (paint) that was lawful for the time.”
The defendants further argue the liability issue is only the beginning of billions of dollars in lawsuits that are bound to follow, for example targeting fossil fuel companies blamed for climate change, pharmaceutical companies for the opioid crisis, and PCB manufacturers for water contamination.
Defendants argue that an end result would be plaintiffs’ attorneys promising massive inflows of money to state and local governments---without the need to prove injury as in a normal court case—a deep pocket of public nuisance liability.
“The stakes are simply too high for this (Supreme) Court not to step in and reaffirm that a public nuisance label is no excuse for discarding centuries old fundamentals of due process and free speech,” the petition concludes.
According to a June 26 report from wtop.com, San Francisco and Santa Clara counties filed a lawsuit in the California Supreme Court in an attempt to block the November ballot initiative sponsored by the three defendants.