Defendants in lead-based litigation hoping to benefit from conservative U.S. Supreme Court

By John Breslin | Jul 22, 2018

SAN FRANCISCO - Three defendants in the long running litigation over lead-based paint liability are probably hoping they will benefit from a significantly more conservative U.S. Supreme Court, according to one California-based law professor.

SAN FRANCISCO - Three defendants in the long running litigation over lead-based paint liability are probably hoping they will benefit from a significantly more conservative U.S. Supreme Court, according to one California-based law professor.

Con-Agra, NL Industries and Sherwin Williams have filed petitions to the court asking that decisions made in California be overturned.

The three were found by a trial court to be responsible for the lead-based paint in houses built before 1981. An appeals court largely upheld that decision, though narrowing it those constructed before 1951. The California Supreme Court refused to review.

Having vowed to take the challenge on to the nation's high court, two similar petitions were filed Monday, one jointly by Con-Agra and NL Industries, the other by Sherwin Williams.

The Supreme Court is being asked to consider two questions, one on whether imposing "public nuisance" liability without proof of any injury caused to a named individual violates the "due process" cause, the second focusing on the First Amendment because the court found the companies liable for decades old advertising and promotion.

Andrew Bradt, assistant professor of law at UC Berkeley, said the make up of the court will have an impact, and the court always "seems to have its eye on California."

"It's very difficult to say whether this case will attract the court's attention," Bradt told the Northern California Record.  "But the Court always seems to have its eye on California, the attorneys involved are excellent, and the stakes are very high."

The case is also likely to be heard by an even more conservative court as a new justice is confirmed, and it "may be open to arguments like this one, which reads the First Amendment and the Due Process Clause expansively."

Bradt added, "Certainly, if the Court does go down that road it will make public nuisance claims like the one that was successful here much, much harder, not just in California, but nationwide."

Ten counties and cities, led by Santa Clara County, sued the three companies, accusing them of being liable for the "public nuisance" of lead-based paint. After an 18-year-old legal battle, the companies were ordered to pay hundreds of millions of dollars.

But since the California Supreme Court declined to review the case in February, there have been further twists and turns.

The three companies organized and bankrolled a ballot initiative that, if successful, will have the state raise $2 billion - costing $3.9 billion over its lifetime - to pay for remediation of lead and other dangerous products.

While they garnered many more signatures than needed, the decision was made at the end of June to pull the initiative. In turn, legislators filed a raft of lead-based bills, including ones that would have either extended the scope of the court decision or offset the cost by targeting paint manufacturers.

Prior to its abandonment, Santa Clara County and the city of San Francisco filed suit asking the California Supreme Court to block the initiative.

The lawsuit claimed that it was an attempt "to trick the public into eliminating the manufacturers’ liability through a deceptive provision that does not even hint at the existence of the manufacturers’ liability and that is buried within a measure that bills itself exclusively as providing funding for remediation."

Tony Dias, an attorney with the Jones Day law firm, which represents Sherwin Williams, said this is an issue of "significant importance."

"We believe we have raised importance issues to the court," Dias told the Northern California Record. "Certainly it ought to look at these issues, (and) not only take a look at but overturn."

Dias predicted a serious impact across the country, including on the First Amendment, which he described as "fairly critical to the idea of commercial speech."

While the petitions work their way through the Supreme Court, a number of underlying issues continue to be thrashed out by the courts in California.

In their petition, Con-Agra and NL Industries are predicting what they believe to be the future if the court does not overturn the decisions made in California.

"Municipalities throughout California are already employing this case to seek massive recoveries from other industries, be it holding fossil-fuel companies responsible for climate change, holding pharmaceutical companies responsible for opioid addiction, or holding former PCB manufacturers responsible for decades-old water contamination," their lawyers wrote.

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Organizations in this Story

Conagra Brands, Inc. Santa Clara County Sherwin-Williams - Headquarters

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