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CA Lead Paint Case Reaches Partial Settlment

Thursday, May 31, 2018

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One of the three companies in an ongoing legal battle in California has settled a lawsuit involving lead paint.

NL Industries Inc., formerly known as National Lead Co., reached a $60 million settlement with 10 California cities and counties, the end of one part of a lawsuit that was originally filed by Santa Clara County in Superior Court in 2000.

The Case

The original filing was intended to hold several gas, paint and chemical companies accountable for what was deemed a massive public health crisis brought on by the presence of lead paint in a number of California homes and buildings.

© / Marilyn Nieves

NL Industries Inc., formerly known as National Lead Co., reached a $60 million settlement with 10 California cities and counties, the end of one part of a lawsuit that was originally filed by Santa Clara County in Superior Court in 2000.

During the 2013 trial, Judge Kleinberg dismissed Atlantic Richfield and DuPont, subsequently ordering The Sherwin-Williams Company, ConAgra Grocery Products Inc. and NL Industries to pay $1.1 billion into a fund that would be distributed to the 10 cities and counties affected, as needed.

In 2014, the judge increased the liability to $1.15 billion. That same year, after being denied the vacation of an amended judgment and the granting of a new trial, the three defendants filed notices of appeal, which effected an automatic stay of the judgment.

In an August 2017 hearing, attorneys representing Sherwin-Williams, ConAgra and NL Industries argued for a reversal of the December 2013 ruling.

Primary points of the companies' argument included that moving forward with the abatement would uphold an unprecedented expansion of public nuisance law, and that the companies themselves should not be held liable for old advertisements that promoted the use of lead-based paint.

“The plaintiff historians were unable to provide a single advertisement where Sherwin-Williams advertised lead-based paint for interior use or white lead carbonate in old lead paint in any of its advertising,” Tony Dias, a partner at Jones Day, which is representing Sherwin-Williams for this case, told Durability + Design News at the time.

In the November 2017 ruling, the Sixth District Court of Appeal in San Jose rejected that free speech claim, but did drop the amount of cleanup that the companies are responsible for to homes build before 1951, instead of 1978. This took the $1.15 billion tag down to $400 million.

Then, in February 2018, a high court judge denied a review of the November 2017 ruling, the most recent installment that involved all three companies. At the time, Andre Pauka, a lawyer for NL, said that the companies were planning to appeal to the U.S. Supreme Court.

What the Settlement Means

The agreement with NL applies to abatement of interior paint in houses built in the 10 municipalities before 1951. The case is still pending in regards to the other two companies in Santa Clara County Superior Court for a determination of how much funding is needed to address all of the houses.

Reports say that Santa Clara County counsel’s office has estimated the remaining amount needed for the abatement at $670 million.

© / XiFoto

The agreement with NL applies to abatement of interior paint in houses build in the 10 municipalities before 1951. The case is still pending in regards to the other two companies in Santa Clara County Superior Court for a determination of how much funding is needed to address all of the houses.

“The settlement amount with NL is not a reflection of the company’s share of total liability, but rather its ability to pay,” the counsel said in a statement. “Rather than seeking a higher amount that could drive NL into lengthy bankruptcy proceedings and result in pennies on the dollar for remediation, this settlement provides timely, unrestricted funding to clean up the hazards of lead paint and address the harms to children and other vulnerable populations resulting from toxic lead paint in homes.”

Also as part of the settlement, NL agreed to withdraw support from a proposed November ballot initiative that would declare that the manufacturers are not liable for lead paint in public homes.

“The Healthy Homes and Schools Act” would authorize $3.9 million taxpayer-paid state bonds that would fund remediation of not just lead, but also mold, asbestos and other environmental dangers in residences, schools and senior citizen facilities.

The initiative is bankrolled by the two other companies in the suit, which argue that it would fix a lot more homes in a wider area with more problems than just lead abatement. Critics argue that it’s just a way for the companies to avoid paying the cleanup.

Either way, the initiative needed to submit 365,880 signatures by July 25 to get a spot on the ballot in the next election cycle. To date, it has filed approximately 680,000.

Pauka also noted that, even though NL has reached a settlement (which is pending “good faith” approval), it does not admit wrongdoing in the case.

"Although NL does not agree with the ruling in the courts, and by settling does not admit to any of the claims in the case, NL would prefer that its limited financial resources be used to fund public health programs rather than be spent on continued litigation," Pauka said.

"Subject to the court's approval, NL will be able to put this litigation behind it and provide funds for the jurisdictions to address lead paint in the manner they believe is most effective to protect health.”


Tagged categories: Good Technical Practice; Lawsuits; Lead; Lead paint abatement; North America

Comment from john lienert, (5/31/2018, 5:54 AM)

seems to me that everyone is jumping on the band-wagon to sue for things that happened half a century ago due to then current we'll hear of someone suing their parents because they raised them the best that they knew how in 1950

Comment from Michael Halliwell, (5/31/2018, 11:13 AM)

Yup, you got it, John. Hindsight is 20/20. Yes, lead is "bad" as we know today. But in the 50's, lead in paint was a good thing for the properties it brought (and we didn't know about all the heath effects). At least they took it out once it became clear it was bad. Asbestos had known issues long before it was put into everything as a "miracle mineral"...and I still am helping folks figure out if they have it, where they have it and what they have to do to control exposure and get rid of it. many things, so many hidden dangers and all bad in hindsight.

Comment from Richard Rabin, (6/12/2018, 11:41 AM)

It's not hindsight. The lead paint companies knew that lead paint was severely poisoning and killing young children. See The Lead Industry and Lead Water Pipes: "A Modest Campaign"; Am J Public Health. 2008;98:1584–1592)

Comment from Michael Halliwell, (6/13/2018, 11:36 AM)

Richard, it's still 100% hindsight...we knew asbestos had issues in the 1st Century AD (Pliny the Younger documented it) but it has only recently been banned. Heck, I'm still doing assessments and helping folks figure out how to deal with it and it's still the #1 cause of occupational fatalities! Similarly, we had anecdotal evidence that lead was bad for centuries even though we'd been using it since 6,000BC. There were bans on using it for food products as early as 1696 (Duke Ludwig banned it from wine production in Ulm, Germany). Same with tobacco...we know it's bad, but you can still walk into the corner store and buy a pack. Guess what, until the science catches up (to the point of being an overwhelming amount of information) and the attitude of the general populace changes, what is acceptable or not will not change. Society (whether from a campaign of the producers or from the attitude of "it's what works" or "we've always done it this way") is glacially slow to change in many cases. By today's standards and with today's information, we (collectively) made very, very poor choices in the past, including lead, asbestos and tobacco....but that's hindsight (we cannot change that then....we can only fix it today). Hopefully we'll learn from our follies and when we suspect something is bad, we'll do something about it (I'm following the current methylene chloride issue to see if we've learned anything yet).

Comment from Tom Schwerdt, (6/21/2018, 10:34 AM)

Michael, claiming it's 100% hindsight is crap. Widespread inappropriate use of lead wasn't random happenstance. There was an organized effort to subvert the scientific process in order to sell more leaded products. I suggest watching the Cosmos S1E7. It's on Netflix.

Comment from Michael Halliwell, (6/26/2018, 11:15 AM)

Tom, sure, those with a vested interest will want to keep what they have. Look at "big tobacco", look at "big oil", look at the asbestos industry, look at our very own construction industry when it comes to silica exposure (as they continue to lobby against the new regs and enforcement)! The list goes on and on. The simple fact is that we, as a society, chose to not act (whether for societal inertia or political reasons) on numerous things that we KNEW were unsafe in some way, shape or form "back then". We chose to say they were okay or to let them be. To come back now, judging them with 50 years of hindsight based on our current situation and the history we collectively helped to create is, frankly, a bit hypocritical. Should they have a responsibility....sure...but so does the government and society at large for not taking action in the first place. If you think the hindsight argument is crap, then I strongly recommend you take action today...because in 50 years, only the substances involved will be different; the lawsuits will be the exact same.

Comment from Fred Salome, (6/29/2018, 3:12 AM)

Seems as though the same argument keeps cropping up, with the same defence. Paint companies do not make consumers aware of the risk inherent in their products, even when they do know what those risks are. Lead is the most obvious example, but there are many more and there will be others. Because paint pervades every level of our society and usually hangs around for a very long time, a more cautious overall approach should be fostered, not a head-in-the-sand attitude to make with short term financial gains. But I doubt that things will ever change, unless there is a strong push for effective legislative control. Self-regulation by paint companies would seem to be an oxymoron.

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