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Paint Makers to Pay $1.1B for Lead

Thursday, December 19, 2013

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Reversing years of legal victories, the Sherwin-Williams Co., NL Industries and ConAgra Grocery Products have been ordered to pay $1.1 billion to remove lead paint from millions of California homes.

"There is a clear and present danger that needs to be addressed," Santa Clara Superior Court Judge James P. Kleinberg wrote in his 114-page landmark ruling, released Monday (Dec. 16), four months after a bench trial.

"The defendants sold lead paint with actual and constructive knowledge that it was harmful."

The judge dismissed claims against co-defendants Atlantic Richfield Company and DuPont in the 13-year-old case.

white lead
Wikimedia Commons

Defendants in the suit include NL Industries, which was known as the National Lead Company until 1971. NL Industries sold its Dutch Boy brand to Sherwin-Williams in 1976. Both companies were ordered to share in clean-up costs.

The parties have 15 days to contest the decision, and a spokeswoman for the companies immediately vowed to do so.

Making Companies Pay

For now, though, the 10 city and county plaintiffs, including the cities of San Diego and San Francisco and Los Angeles County, have succeeded where other jurisdictions have fallen short—in making the companies pay for interior lead-paint abatement in their jurisdictions.

Kleinberg found that the manufacturers “created or assisted in the creation of a public nuisance” by marketing, promoting and profiting from lead-based paint, despite actual or constructive knowledge that it was toxic to children.

The decision rejected various arguments as unconvincing, including contentions that lead paint no longer presented a significant public health threat and that the defendants lacked knowledge about the hazards at the time of sale.

Improving Children’s Lives

“Consistent with their arguments throughout the trial the Defendants rely on statistics and percentages,” the judge wrote.

“When translated into the lives of children, that is not a persuasive position. 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.”

The tentative judgment was entered against ConAgra Grocery Products Company (successor of W.P. Fuller & Co.), NL Industries, and Sherwin-Williams.

ARCO and DuPont

On the other hand, the judge found, the plaintiffs failed to make their case against Atlantic Richfield Co. (ARCO) and DuPont.

“The People’s own experts were unable to make the case that ARCO promoted lead paint in the jurisdictions,” Kleinberg said. “At most ARCO promoted paints containing lead for only two years and that was to the trade, not the general public.”

Superior Court of California Santa Clara County

Filed 13 years ago, the matter came before the Santa Clara Superior Court bench July 15 and ended Aug. 22. The defendants say Monday's ruling was "at odds with California law and judicial decisions across the country."

DuPont’s claim was dismissed in part because its interior residential paint products never contained white lead pigments. Moreover, the company did not sell paint in California until 1924 and never manufactured white lead pigments in the state, the decision said.

“It is telling that DuPont distanced itself from other paint companies by its products that were lead-free and used that quality as a key advertising theme,” the judge noted.

Decision ‘at Odds’ with the Law

A spokeswoman for the paint manufacturers, former Iowa Attorney General Bonnie J. Campbell, called the decision “at odds with California law and judicial decisions across the country that have uniformly rejected similar public nuisance claims.”

She said the decision penalized manufacturers for “truthful advertising of lawful products, done at a time when government officials routinely specified those products for use in residential buildings.”

“The decision rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint, and it conflicts with and threatens to upend California's lead poisoning prevention programs, which work,” Campbell said in an emailed statement.

Finally, she said, the ruling is “more likely to hurt children than help them, and it will likely disrupt the sale, rental, and market value of all homes and apartments built before 1978.”

ConAgra Foods issued a separate statement in response to the verdict. 

"We vehemently disagree with the decision and will appeal. We are absolutely not an appropriate defendant," said spokeswoman Lane Friedman. "ConAgra Foods was never even in the paint business. As a food maker who employs thousands of people in California, we believe this case is an unfortunate example of extreme overreach."

Child and suspected lead paint

The court said it was convinced that thousands of children in the jurisdictions were "presently and potentially victimized by" lead.

The defendants plan to file objections with the judge.

“If those are not accepted, we will file a motion for a new trial or mistrial; and if that is rejected, we will appeal the Court’s decision,” Campbell added.

Abatement Order

The order requires the defendants to pay $1.1 billion into a specially designated and restricted abatement fund.

The fund will be administered by the Director of the California Childhood Lead Poisoning Prevention Branch program for the benefit of residents within the 10 jurisdictions.

Los Angeles County will receive up to 55 percent of the fund, or $605 million; Santa Clara and Alameda will receive up to $99 million; San Diego and San Francisco, up to $77 million; San Mateo, up to $55 million; Ventura, up to $44 million; and Monterey and Solana, up to $22 million, according to the distribution schedule.

The interior paint abatement plan will end four years after the date the defendants make total payment.

Documents filed electronically in the case may be viewed via the Superior Court of California, County of Santa Clara website.


Tagged categories: Coating chemistry; DuPont; Formulating; Health and safety; Laws and litigation; Lawsuits; Lead; Lead paint abatement; Sherwin-Williams

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