BP Plc (BP/)’s Atlantic Richfield Co. is among five companies fighting a public-nuisance lawsuit in state court seeking $900 million to replace or contain lead paint in millions of California homes.
In a trial that began today before Superior Court Judge James Kleinberg in San Jose, 10 California cities and counties including San Diego, Los Angeles County and San Francisco aim to break the companies’ streak of victories in similar suits in seven different states.
The California plaintiffs’ road map is a 2006 California appeals opinion that reinstated the case and endorsed its arguments as a “viable theory,” Owen Clements, the chief of special litigation for the San Francisco City Attorney’s Office, said in a phone interview before the trial began. Courts in states where similar cases failed relied on a narrow reading of nuisance laws, he said.
“There are still thousands of kids that are getting exposed to lead through lead paint every year,” Clements said. The counties can’t recoup money they’ve spent over decades on lead-abatement programs. The current suit seeks to force manufacturers to “pitch in to help solve the problem going forward, which is the least, I think, they could to,” he said.
In addition to Los Angeles-based Atlantic Richfield, the defendants are Cleveland-based Sherwin-Williams Co.; Dallas-based NL Industries Inc. (NL:US); ConAgra Grocery Products, a unit of the Omaha, Nebraska-based maker of Chef Boyardee pasta and Pam cooking spray; and Wilmington, Delaware-based DuPont Co.
The companies argue that decisions in states including New York, New Jersey and Wisconsin demonstrate that the California public-nuisance suit is “without factual or legal merit,” according to Bonnie J. Campbell, a former attorney general of Iowa and spokeswoman for the companies.
Federal and California agencies have determined that lead paint, if well maintained and intact, typically poses no health risk, and that removing old paint can expose children to lead dust, Campbell said in a memo written on behalf of her clients.
California’s suit seeks “extensive abatement” of lead paint from homes, “yet specifically exempts their own public buildings, including schools, their lead water pipes, roads, and parks from the requirement for abatement,” according to Campbell. California law requires landlords to prevent or abate lead-based paint hazards, she said.
Clements said California is relying on a 2006 opinion by state appeals-court Judge Nathan Mihara, who said that while lead paint was banned for use in public buildings in 1978, the companies’ “misrepresentations about the dangers of low-level lead exposure” caused government entities “to fail to make timely efforts to prevent and treat” the problem.
The misrepresentations “increased the cost of treatment for those who had been exposed or continued to be exposed,” Mihara wrote, adding that it wasn’t until 1998 that studies adequately analyzed the companies’ misrepresentations, and proved that low-level lead exposure could cause serious damage to fetuses, children and adults.
Campbell said in an e-mailed response that the appeals court decision incorrectly permitted California to apply its public-nuisance claims to the promotion and sale of the lead paint and that there was nothing misleading about the companies’ promotion of lead-based paint because “today’s alleged hazard was unknown and unknowable” when it was sold.
The case is California v. Atlantic Richfield Co., 1-00-CV-788657, California Superior Court for the County of Santa Clara (San Jose).
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