Source: Los Angeles Times, December 17, 2013
Posted on: http://fpn.advisen.com
A Northern California judge Monday found three paint companies liable for exposing children to a known poison and ordered them to pay $1.1 billion into a fund to remove lead from inside California homes.
Santa Clara County Superior Court Judge James P. Kleinberg ruled that ConAgra Grocery Products Co., NL Industries Inc. and the Sherwin-Williams Co. created a “public nuisance” by selling lead-based paint for decades before it was banned in 1978.
The ruling said that lead paint, because of its lasting ill effects, poses a “clear and present danger that needs to be addressed.”
“The defendants sold lead paint with actual and constructive knowledge that it was harmful,” Kleinberg said in a 110-page ruling, adding that the companies “promoted lead paint even when non-leaded paints were available.”
The decision set aside $605 million, or 55% of the fund, to pay for lead removal in Los Angeles County. The remainder was allotted to the counties of Alameda, Monterey, San Mateo, Santa Clara, Solano, Ventura and the cities of Oakland, San Diego and San Francisco.
The fund will be administered by the state’s Childhood Lead Poisoning Prevention Branch and will pay for inspections and lead abatement in homes.
“The court is convinced there are thousands of California children in the jurisdictions whose lives can be improved, if not saved, through a lead abatement plan,” Kleinberg’s ruling says.
Local governments sued the industry in 2000, alleging companies promoted lead-based paint even though its dangers had been known as early as the 1890s. Ten California cities and counties joined the case, seeking to get five of the country’s largest paint manufacturers — both existing firms and their successors — to pay to clean the lead from tens of thousands of older homes.
The ruling followed a five-week trial without a jury. Two of the companies were not found liable: Atlantic Richfield Co. and DuPont Co.
The companies argued that they never deliberately sold a hazardous product and that children with lead poisoning could have been exposed by other sources.
But Kleinberg agreed with the cities and counties, writing that experts “are virtually unanimous in concluding that lead paint is the primary cause of lead poisoning in young children.”
Lead is a powerful poison that builds up in the body and poses a serious health risk, even at low levels. It is particularly harmful to children and is linked to learning disabilities and irreversible developmental problems.
At least 60,000 children under the age of 6 in the cities and counties that sued had unsafe levels of lead in their blood between 2007 and 2010, the ruling noted. Nearly 5 million homes in those areas were built before the 1978 ban and could require repairs. Many are in low-income neighborhoods.
“The people who are affected are largely poor and minority children who live in old homes that haven’t been repaired,” said Joseph Cotchett, an attorney for the cities and counties who backed the lawsuit. He called Kleinberg’s findings a “landmark ruling that will dramatically improve the lives of children throughout the state.”
Bonnie Campbell, a spokeswoman for the three companies, said they would file objections with the judge and will appeal the decision unless he grants a new trial or declares a mistrial. The industry has faced similar public nuisance lawsuits in other parts of the country and has been largely successful in fending them off.
“The decision violates the federal and state constitutions by penalizing manufacturers for the truthful advertising of lawful products,” she said in a statement, adding that “the risks to children alleged today were unknown and unknowable decades ago.”
She said building owners are the ones responsible for the risk to children from poorly maintained lead paint and predicted the decision would disrupt the market for homes and apartments built before 1978.
Los Angeles County officials welcomed the decision and said their priority is fixing housing in low-income areas.
“The $605 million awarded to Los Angeles County for the remediation of lead contaminated housing is an overdue payment that will help safeguard the health of our children,” Dr. Jonathan Fielding, the county’s director of Public Health, said in a statement.
Despite the 1978 ban, lead remains in millions of older homes below other layers of paint, where it can come loose and leave behind contaminated chips and dust that can be ingested by children.
The judge’s order is limited to the interiors of homes and does not require the total removal of lead-based paint from all surfaces. It does require the paint to be removed or otherwise isolated from window frames, doors and floors where friction can release lead-contaminated dust.