On Monday, a California judge did what no other judge or jury in the country has managed to do during more than a decade of controversy over who will pay the cleanup costs nationally for decades of lead paint contamination.
He found the paint industry liable—to the tune of $1.1 billion. The ruling (pdf) comes in a 13-year-old lawsuit pursued by 10 California cities and counties.
Santa Clara County Superior Court Judge James Kleinberg tentatively ruled after a six-week trial in the summer that three companies, NL Industries, ConAgra and Sherwin Williams, must pay the money into a fund administered by the state’s Childhood Lead Poisoning Prevention Branch to pay for inspections and lead abatement in tens of thousands homes in the state. The judge, an appointee of Democratic Governor Gray Davis, dropped two early defendants, Atlantic Richfield Co. and Dupont Co., from the suit.
Los Angeles County will be the largest beneficiary, receiving $605 million. An estimated 5 million older homes in 10 California cities and counties still have dangerous amounts of lead paint, despite it being banned from use in 1978. Exposure to lead can cause permanent brain damage and about half a million American children are said to be suffering from it. Lead lowers IQs, causes learning disabilities and has been linked to criminal behavior. It has also been linked to stunted growth, seizures and a range of maladies.
The lawsuit differed from unsuccessful attempts in seven other states to sue lead paint manufacturers by arguing the companies violated state public nuisance laws, rather than health laws. Government lawyers argued they didn’t have to show that specific individuals were harmed in a direct way, only that the industry assisted in the creation of a public nuisance.
The companies argued that there were other causes of lead poisoning that weren’t related to lead paint. But the judge said generally-accepted scientific evidence indicated otherwise. “The existence of other sources of lead exposure has no bearing on whether lead paint constitutes a public nuisance,” Kleinberg wrote. “It does not change the fact that lead paint is the primary source of lead poisoning for children in the jurisdictions who live in pre-1978 housing.”
The judge cited 20 sources of “constructive knowledge” dating back to 1895 that identified lead as a dangerous substance in paint and that the companies should have known the product they promoted was poisonous. “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,” Kleinberg wrote.
Bonnie J. Campbell, a representative of the three companies, disagreed and told Legal Newsline that “This decision is more likely to hurt children than help them.”
She reasoned that the ruling will disrupt the market for homes built before 1978, making it more likely that “scofflaw landlords,” who are “responsible for the risk to children from poorly maintained lead paint,” will avoid having to perform the necessary repairs.
“The decision violates the federal and state constitutions by penalizing manufacturers for the truthful advertising of lawful products, done at a time when government officials routinely specified those products for use in residential buildings,” she told Legal Newsline. Campbell is a former Iowa attorney general and led the U.S. Department of Justice’s Office on Violence Against Women during the Clinton Administration.
San Diego, Oakland and San Francisco were joined in the lawsuit by the counties of Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano and Ventura.
The parties have 15 days to offer objections to the judge over his decision, and can ask for a mistrial or a new trial. If those are denied, the companies have said, they will appeal to a higher court.