A Last Chance for Lead Paint Litigation?Paul M. Barrett
Lead paint was once going to be the next asbestos or tobacco—an illustration of how mass litigation could tame a rogue industry and, not incidentally, produce a bonanza for plaintiffs’ lawyers. Mass lawsuits against makers of asbestos-laden products and cigarettes led to multibillion-dollar settlements in the 1990s. Lead-paint litigation launched during the same period, however, has mostly failed.
Now, in what could be a finale to the lead-paint liability drama, industry defendants are fighting a 13-year-old case in a state court in San Jose. The results could be instructive for future attempts to hold large businesses accountable in court for products that turn out to be harmful.
After years of preliminary skirmishes, the California trial finally began in mid-July. San Francisco, San Diego, Los Angeles County, and seven other communities are trying to force five manufacturers to pay for a $1 billion program to get rid of lead paint in millions of older private homes. The defendants—Sherwin-Williams, BP’s Atlantic Richfield unit, NL Industries, ConAgra Grocery Products, and DuPont—began putting witnesses on the stand this week. The manufacturers seek to prove that the hazards of lead in paint, widely known since the federal government banned it for household use in 1978, weren’t fully understood decades ago, when the products in question were sold.
Manufacturers have fended off dozens of past suits filed by state and local governments and school districts. Among the reasons judges have deep-sixed the public-sector cases are: difficulties determining which companies made the lead pigment used in particular structures, hesitance to assign liability based strictly on defendants’ market share, and unwillingness to treat the lead paint problem as one akin to industrial pollution (a “public nuisance” in legalese).
Even though nuisance cases have failed in seven states—Ohio, Rhode Island, Missouri, New Jersey, Illinois, New York, and Wisconsin—a pair of heavyweight plaintiffs’ firms are trying once more in California. Motley Rice of South Carolina and Cotchett Pitre & McCarthy of California are banking on California’s more expansive nuisance law (at least as they see it) to serve as a springboard to victory. The plaintiffs stress a series of long-ago examples of what they claim are industry misrepresentations about the degree of danger of low-level exposure to lead. The suit attempts to portray paint makers as similar to the tobacco companies (and asbestos-products manufacturers) that actively sought to obfuscate the science connecting deadly illness to use of their products.
The paint companies respond that, on the contrary, they did the right thing. “When interior lead-based paint was made more than 50 years ago, it was a legal product in great demand because it was washable and durable,” an industry white paper asserts. “When health risks from chipping and peeling interior paint were first suspected in late 1948, industry worked closely with public health officials to investigate the risk. From funding ‘no strings attached’ research to voluntarily withdrawing lead-based interior paint decades ahead of federal action, the companies acted responsibly.”
A trio of public policy considerations color the California case. First, legislatively mandated public health programs in California have had enormous success at lowering lead levels in the blood of children. Second, the remedy the plaintiffs are seeking—stripping away old lead paint—actually is not what public health experts recommend. Instead, federal and state environmental and health officials generally urge that lead paint be left intact and maintained. If that course is followed, and children are prevented from eating old paint chips, there ordinarily isn’t a health risk. Finally, California already requires landlords to address any existing lead-based paint dangers. It is the failure to maintain painted surfaces that creates an immediate health hazard.
Those three considerations might be fashioned into arguments against using the courts to hold the manufacturers liable for a billion-dollar initiative that is arguably unnecessary and unwise. Still, Santa Clara County Superior Court Judge James Kleinberg has implied that the defendants shouldn’t get cocky. With the proceeding underway in late July, Kleinberg, who is presiding over the case without a jury, urged both sides to settle. “If you’re interested in gambling, go to Reno and Vegas,” the judge said. “If you are interested in being intelligent, you’ll have to settle this case now. This is not Rhode Island and is not Milwaukee.” Since defendants had prevailed in Rhode Island and Milwaukee, this advice had to seem ominous to the paint manufacturers in Kleinberg’s courtroom.
Nevertheless, the defendants decided to take their chances. They must assume that by the time they’re done putting on their evidence, the judge will see things their way. The trial is expected to continue for another two weeks.