BP Plc’s Atlantic Richfield Co. is among five companies fighting a public nuisance lawsuit in state court seeking $900 million to replace or contain lead paint in millions of California homes.
In a trial that began this week before Superior Court Judge James Kleinberg in San Jose, 10 California cities and counties including San Diego, Los Angeles County and San Francisco aim to break the companies’ streak of victories in similar suits in seven different states.
The California plaintiffs’ road map is a 2006 California appeals opinion that reinstated the case and endorsed its arguments as a “viable theory,” Owen Clements, the chief of special litigation for the San Francisco City Attorney’s Office, said in a phone interview before the trial began. Courts in states where similar cases failed relied on a narrow reading of nuisance laws, he said.
“There are still thousands of kids that are getting exposed to lead through lead paint every year,” Clements said. The counties can’t recoup money they’ve spent over decades on lead-abatement programs. The current suit seeks to force manufacturers to “pitch in to help solve the problem going forward, which is the least, I think, they could to,” he said.
In addition to Los Angeles-based Atlantic Richfield, the defendants are Cleveland-based Sherwin-Williams Co.; Dallas- based NL Industries Inc.; ConAgra Grocery Products, a unit of the Omaha, Nebraska-based maker of Chef Boyardee pasta and Pam cooking spray; and Wilmington, Delaware-based DuPont Co.
The companies argue that decisions in states including New York, New Jersey and Wisconsin demonstrate that the California public-nuisance suit is “without factual or legal merit,” according to Bonnie J. Campbell, a former attorney general of Iowa and spokeswoman for the companies.
Federal and California agencies have determined that lead paint, if well maintained and intact, typically poses no health risk, and that removing old paint can expose children to lead dust, Campbell said in a memo written on behalf of her clients.
California’s suit seeks “extensive abatement” of lead paint from homes, “yet specifically exempts their own public buildings, including schools, their lead water pipes, roads, and parks from the requirement for abatement,” according to Campbell. California law requires landlords to prevent or abate lead-based paint hazards, she said.
Clements said California is relying on a 2006 opinion by state appeals-court Judge Nathan Mihara, who said that while lead paint was banned for use in public buildings in 1978, the companies’ “misrepresentations about the dangers of low-level lead exposure” caused government entities “to fail to make timely efforts to prevent and treat” the problem.
The misrepresentations “increased the cost of treatment for those who had been exposed or continued to be exposed,” Mihara wrote, adding that it wasn’t until 1998 that studies adequately analyzed the companies’ misrepresentations, and proved that low-level lead exposure could cause serious damage to fetuses, children and adults.
Kleinberg said in court this week that the 2006 opinion will be the “guiding principle” for the trial.
Campbell said in an e-mailed response that the appeals court decision incorrectly permitted California to apply its public-nuisance claims to the promotion and sale of the lead paint and that there was nothing misleading about the companies’ promotion of lead-based paint because “today’s alleged hazard was unknown and unknowable” when it was sold.
Don Scott, a lawyer representing NL Industries, told Kleinberg in opening arguments today that the companies need to be judged by the hazards known when they last sold lead paint for housing, which in the case of NL Industries was 1972.
Scott said that lawyers for California have argued that as recently as 2009, 10,875 children within the 10 jurisdictions suing suffered from lead poisoning. If the 1972 standards for hazardous levels of lead in children’s blood were applied, three children within the jurisdictions would be judged to be suffering from lead poisoning — and that’s before other sources of lead are considered, he said.
“This is the difference between using hindsight as the people do, and using the knowledge of the time,” Scott said.
Joe Cotchett, a lawyer representing the cities and counties, told Kleinberg that lead paint is the primary source of lead exposure for children who live or spend significant time in homes built before 1978.
The California legislature has determined that homes built before that year, or more than 3.5 million homes within the 10 jurisdictions, must be “presumed to contain lead-based paint,” Cotchett said. The plaintiffs must prove that the companies created or assisted in the creation of the public nuisance of lead paint poisoning, he said.
“We cannot just assume that if a house has been repainted or cleaned up that there isn’t a hazard to small children,” Cotchett said. “Most of this problem comes from minority housing in poor housing areas.”
The case is California v. Atlantic Richfield Co., 1-00- CV-788657, California Superior Court, County of Santa Clara (San Jose).
Editors: Andrew Dunn, Stephen Farr