Hundreds of thousands of children’s medical records will be released to the Sherwin-Williams Co. and other lead pigment paint producers in a long-running lawsuit brought by 10 California cities and counties, a judge has ruled.
Santa Clara Superior Court Judge James P. Kleinberg ordered the disclosure in The People of California vs. Atlantic Richfield Company et. al., according to an announcement by Alameda County, one of the plaintiffs.
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The state health department had fought the record request.
The county is one of 10 localities suing several former producers of lead pigment in paint, including Atlantic Richfield Company, ConAgra Grocery Products Company, E.I. DuPont De Nemours and Company, NL Industries Inc., and Sherwin-Williams.
The judge’s order was a blow to the plaintiffs, who maintain the records in their jurisdictions for the state Department of Public Health. They had been fighting the defendants’ request for the records.
Kleinberg made his ruling in January, but Alameda County disclosed it only this week.
The identities of the individuals and their family members will not be disclosed, but addresses and health records will, under the court’s ruling.
The information will be disclosed to attorneys and experts for both the defendants and the plaintiffs. Use of the information is restricted to the lawsuit, and parties are prohibited from trying to determine the identity of (or contacting) those tested, their families and property owners.
The court also ordered a public notification process and said individuals and families could file objections to the release of their information. Objections must be filed by Aug. 31.
The public notice is addressed to: “(1) Any person who has or whose children have had a blood test for lead in the counties of Alameda, Los Angeles, Monterey, Santa Clara, San Mateo, Solano, Ventura and San Diego, and the city and county of San Francisco and (2) Any owner of a building in which a person in the building has had a blood test for lead in those jurisdictions.”
More information and instructions are available at www.LeadTestingDisclosure.com.
Maricela Foster, acting director of the Alameda County Lead Poisoning Prevention Program, said the plaintiff jurisdictions in the case were “deeply troubled by the court’s decision.” The California Department of Health also opposed the disclosure, citing patient confidentiality.
“We want the public to understand that they have the right to make an objection, but at the same time, we are encouraged this case will soon go to trial, which has the potential to reduce substantially the future risk of children being poisoned by lead paint in their own homes,” said Foster.
|Ten California jurisdictions are suitng the makers of lead pigment in paints.|
The State Attorney General’s Office filed a petition with the Santa Clara Superior Court to stop the disclosure and order better notice to the affected individuals and their families, Alameda County said.
The counties and cities, acting on behalf of the People of the State of California, brought the suit 12 years ago.
After years of activity in the case, the only remaining legal theory for recovery is based on public nuisance. California law defines a nuisance as “[A]nything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ...” (See: Civil Code § 3479).
A public nuisance is one that affects an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage may be unequal for the individuals involved (See: Civil Code § 3480).
The public entities aim to hold the manufacturers responsible for the “toxic lead paint that permeates homes and properties, and seek an order requiring the paint companies to abate the lead,” the county said.
Sherwin-Williams: ‘Fair Play’
Charles H. Moellenberg Jr., an attorney for The Sherwin-Williams Company, said in a statement that the judge “found that ‘fair play” dictated that the Defendants should have access to” data contained in California’s Response and Surveillance System for Childhood Lead Exposures database and in the city and county environmental and case files “in order to defend themselves.”
“As a result, information from the database and files will be provided to the defendants,” Moellenberg said. “The data will be furnished with strong protections to safeguard privacy, including the removal of all personal information. Neither the defendants nor the public will have access to the names of any individuals or be permitted to try to identify them.”
Moellenberg added: “[F]ederal and California state agencies say good maintenance is the best way to deal with existing lead paint. Intact and well-maintained lead paint does not pose a risk. Also, other sources of lead are much more important sources of lead to children in California today.”
Bay Area Lead
Lead was banned from house paint in the United States in 1978, but 87% of homes in Alameda County, as well as most homes in the Bay Area, still have lead-based paint under the surface layers, the county reported.
“When the paint peels or is disturbed during painting or renovation work, or from normal wear and tear on friction surfaces, the home can become lead-contaminated from fine particles of lead dust. Lead is highly toxic even in very small amounts,” the county said.
The county added: “Lead dust can cause permanent damage to the brain, nervous system and other organs resulting in life-long health and behavioral problems. The only way to know if you or your child has been exposed to lead is to have a blood lead test.”
More than 5,000 children in Alameda County alone are known to have been exposed to dangerous levels of lead over the last 20 years, with many more who still need to be tested, the county said.