The Lead Paint Lawsuit That Will Not Go Away

Tom Scott
CA Executive Director, National Federation of Independent Business

Back in August of 2013, I wrote about the infamous 13 year old lead paint lawsuit in which Santa Clara County, along with ten other county governments, sued five paint manufacturers. The lawsuit alleged the manufacturers knew of the dangers of lead paint as early as the late 1890s and still sold it to consumers without warning. Lead paint was banned by the federal government in 1978 for residential use – 22 years before this case was filed.

It is interesting to note that cities and counties are suing private companies and have hired contingency fee lawyers to handle the case. These lawyers will receive a 17% fee, plus expenses but the growing trend of the public sector hiring contingency fee lawyers is a topic for another post.

This case is unlike cases involving individuals who sue over health hazards, in which plaintiffs must meet high standards to prove a case against an entire industry. In this case, California officials creatively alleged that paint manufacturers violated the state’s public nuisance laws, creating a much lower bar for liability. Lead paint, the officials, argued has created a “substantial and unreasonable” injury.

On December 16th, Judge James Kleinberg, a judge appointed by Governor Gray Davis, ruled that three paint manufacturers created a “public nuisance” by selling lead based paint for decades before it was banned in 1978. He awarded $1.15 billion dollars to the original 10 cities and counties who brought the lawsuits. Of that award, $605 million will be given to Los Angeles County to pay for lead removal. The rest of those funds would go into a fund administered by the state’s Childhood Lead Poisoning Prevention Branch. This would pay for inspections and lead abatement on the inside walls of tens of thousands of homes.

The paint manufacturers are not happy at all with this ruling. They have stated that they will file objections with the trial judge and, if those are not accepted, they will file a motion for a new trial or mistrial. If that is rejected, then they will appeal the Court’s decision. They stated: “The Judge’s decision is wrong under California law and wrong on the facts. If other cities, counties or states carefully review the decision, they will see that it does not apply to their jurisdictions either. They will find that the judge’s decision contradicts local, state and federal regulations – including those of the EPA and HUD – recognizing that the safest way to deal with lead based paint is through proper owner maintenance and repainting.”

So the saga will continue for the lead paint lawsuit. Why cities and counties feel that private companies should be held liable for a product that was perfectly legal to sell at the time is beyond logic. Programs and regulations are already in place to help in the abatement of lead paint, so why was it necessary to file this lawsuit? If I had a guess, I’d have to say it’s all about the benjamins.

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