November 15, 2017
California Court of Appeals sides with plaintiffs in historic lead paint case, agrees lead paint manufacturers knowingly promoted toxic lead paint
A three-justice panel of the California Court of Appeals, 6th Appellate District on Nov. 14, 2017 affirmed the majority of the January 2014 ruling of Judge James P. Kleinberg of the Santa Clara Superior Court in which he ruled that three lead paint companies created a public nuisance by promoting lead paint for interior residential use with knowledge of the danger that such use would create for children at that time, and agreed that an abatement funded by the defendants is appropriate in order to alleviate public harm by clearing homes constructed before 1951 of toxic paint.
Plaintiffs have alleged, and the appellate panel agreed, that defendants Sherwin-Williams Company, NL Industries, Inc., and ConAgra Grocery Products Company actively promoted lead for use in homes, despite knowing that lead paint was highly toxic.
Defendants, questioned the validity of the 2014 established $1.15 billion fund claiming on appeal that it amounted to nothing more than a “thinly-disguised” damages award for the plaintiffs. However, the panel stated, “Here, plaintiff sought the equitable remedy of abatement for the nuisance because the hazard created by defendants was continuing to cause harm to children, and that harm could be prevented only by removing the hazard.” Ruling on the matter, the panel sided with plaintiffs, agreeing that the lower-level court’s “reasonable decision to create a remediation fund overseen by a knowledgeable receiver, and ultimately by the court, was not an abuse of discretion under the specific circumstances of this case.”
The panel’s ruling found that the defendants must clean up lead paint inside pre-1951 constructed homes in the plaintiffs’, The People of the State of California, jurisdictions: Santa Clara County, Alameda County and the City of Oakland, the City and County of San Francisco, the City of San Diego, Los Angeles County, Monterey County, San Mateo County, Solano County, and Ventura County.
In doing so, the panel remanded the case back to the Santa Clara Superior Court for calculation of new costs based on lead paint abatement in only homes constructed before 1951. Judge Klienberg’s decision had included homes constructed before 1980. The panel also ruled that the plaintiffs should recover their costs for the appeal.
The panel stated the three defendants, “NL, SWC, and Fuller . . . were well aware in the early part of the 20th century that lead dust was poisonous.” Further, the panel found that Sherwin Williams “had the requisite knowledge in 1900 of the public health hazard posed by lead paint, but it nevertheless continued to promote lead paint for interior residential use thereafter. This evidence supports the trial court’s findings that SWC [Sherwin-Williams Company] engaged in requisite wrongful promotion.”
This ruling follows an Aug. 24, 2017 hearing in which Danny Chou, Santa Clara County, California, Assistant County Counsel, argued the appeal for the People of the State of California.
“Despite ongoing attempts over many years by the defendants to escape taking responsibility, these ten California counties and cities have persevered and prevailed in their allegations that these companies have created a public nuisance in their communities and that the companies should be held accountable,” said Motley Rice attorney Fidelma Fitzpatrick who served as lead trial counsel in the 2013 trial, representing The People. “I commend them for seeing this appeal through and for fighting for what their residents and communities need to reduce the exposure to lead paint. It has been an honor to counsel them. I only hope that other communities will take note of what California has been able to accomplish to better protect children.”
The county counsel and city attorneys who brought the case were assisted by Motley Rice, along with Cotchett, Pitre & McCarthy, LLP; Law Office of Peter Earle; and Mary Alexander and Associates. The case is The People v. Conagra Grocery Products Company et al., and The Sherwin-Williams Company in the Court of Appeal of the State of California Sixth Appellate District, No. H040880 (Santa Clara County Super. Ct. No. CV788657).