A California judge ordered three companies to pay $1.1 billion to help nine cities and counties in the state remove lead paint from homes. The ruling in the 13-year-old case marks a significant turn from recent litigation that targeted manufacturers today for a product that was banned from home use in 1978.
Superior Court Judge James Kleinberg's decision, filed Dec. 16 in a Santa Clara County court, concluded that Sherwin-Williams, NL Industries, and ConAgra violated the state's public nuisance laws by promoting the use of lead paint while they knew it was dangerous. (ARCO and DuPont also were named in the lawsuit, but Kleinberg dismissed them from liability, saying there wasn't enough of a connection between companies they had acquired and the problem at hand.)
The three companies have 15 days to appeal. One of them, ConAgra, issued a statement saying it will do so, calling the case "an unfortunate example of extreme overreach." The San Jose Mercury News quoted Bonnie Campbell, spokeswoman for the defendants, as saying the ruling doesn't jibe with numerous similar lead-paint nuisance suits across the nation that have been rejected.
In summarizing the plaintiffs' case, Kleinberg said the cities and counties argued that the "defendants assisted in the creation of this nuisance by concealing the dangers of lead, mounting a campaign against its regulation, and promoting lead paint for interior use."
"The People further claimed defendants did so despite their knowledge for nearly a century that such a use of lead paint was hazardous," Kleinberg added. "Had defendants not done so, it is asserted, lead paint would not have been incorporated into the interiors of such a large number of structures and would not have created the public health hazard that the People contend now exists."
To those assertions, Kleinberg concluded that each of the defendants had evidence of lead's potential health dangers dating back to 1878, and both scientific journals and the companies' own manuals suggest the defendants had "constructive knowledge" that lead paint was a hazard, even if they didn't have "actual knowledge" of its potential harms. Lead is regarded as particularly harmful to small children and the elderly, even in tiny amounts.
"Defendants’ assertion that they were not aware of the effects of low-level lead exposure until long after they stopped producing and promoting lead paint is of no moment," Kleinberg wrote. "Each defendant certainly knew or should reasonably have known that exposure to lead at high levels, including exposure to lead paint, was fatal or at least detrimental to children’s health. That knowledge alone should have caused each defendant to cease its promotion and sale of lead pigment and/or lead paint for home use. Instead, after becoming aware of the hazards associated with lead paint, they continued to sell it."
The nine California cities and counties that entered into the lawsuit—a group that includes both the Los Angeles and San Francisco Bay metro areas—have said they planned to use the money from the defendants to target homes built in their counties before 1978 that pose the greatest risk of lead poisoning to children. They intend to create outreach and education programs, have trained individuals inspect homes for lead paint, and then use approved abatement techniques to eliminate the lead-paint hazard. Those abatement techniques include testing interior surfaces for lead-based paint, removing dust, and repairing buildings.
Similar suits have been unsuccessful in seven other states, SFGate.com noted. The difference in California may have been a state law that allows judges to order a halt to practices that harm the "community at large" or large numbers of people