Column: This lawsuit to force lead paint makers to clean up California homes has been in court for 17 years

By Michael HiltzikBusiness Columnist

April 21, 2017 11:55 AM PT

No one is willing to swear that the lawsuit by 10 California cities and counties against three lead paint manufacturers is the longest-running litigation in the state courts.

They only know two things: that thousands of children are still being poisoned every year by deteriorating lead paint used in homes before 1980, and that the lawsuit to force the companies to pay for the cleanup has been in court for 17 years, with no end in sight.

That’s frustrating for public health officials, because lead poisoning is a major health threat to children. Even though lead paint was outlawed for residential use in the U.S. in 1978, the residue from its decades of use is today the primary source of child lead poisoning. That’s especially true in rental units in low-income neighborhoods where housing stock is poorly maintained, occupants don’t have the resources for upkeep, and children can ingest paint chips and breathe in lead-contaminated dust.

Aside from the kids that are poisoned ... it’s a serious problem from the viewpoint of adverse publicity.

— Lead industry lobbyist Manfred Bowditch, lamenting reports of lead paint poisoning in 1956

“Lead is common, the health problems it causes are severe, it affects children, and it’s preventable,” says Jeffrey Gunzenhauser, the interim health officer and medical director for Los Angeles County. “It’s at the top of our list of environmental threats.”

Although the rate of lead poisoning has come down sharply in recent years, more than 2,000 children still test positive for lead in their bloodstream each year in L.A. County. The actual number is almost certainly higher, because children aren’t routinely screened for lead unless they’re seen by a pediatrician. Nationwide, the Centers for Disease Control and Prevention estimates that more than 4 million American households have children exposed to high levels of lead.

The California lawsuit, which was originally filed in state court in Santa Clara in 2000, has become a symbol of the inability of the judicial system to meet an urgent social need. In January 2014, Judge James P. Kleinberg held three companies —ConAgra Grocery Products Co., NL Industries and Sherwin-Williams Co. — liable for the costs of inspecting more than 3.5 million California homes and apartments and removing or abating residual lead hazards. That means painting over deteriorating surfaces and removing lead chips and dust, especially in units housing children.

Kleinberg assessed the companies $1.15 billion. Most of the money, $632.5 million, was designated for Los Angeles County, where the vast majority of suspect units are located.

The companies promptly appealed and filed briefs by early 2015, but there the matter has rested. The San Jose court hearing the appeal hasn’t even set a date for oral arguments. In the meantime, not a dime has been paid.

The prospect of a billion-dollar fund to abate a known hazard beckoning just out of reach only heightens the frustration for medical authorities.

“From our point of view, prevention is a simple solution,” Gunzenhauser told me. Children who test positive for lead poisoning can be treated, he says, “but why should we wait till children are sick and their growth is at risk because of lead?” The funding ordered by Kleinberg would “allow us to stop worrying about the treatment part and remove the problem up front.”

The delay in resolving the lawsuit is partially due to a state law requiring appeals judges to rule on a case within 90 days of oral arguments. The law gives judges an incentive to defer a hearing until they’re almost ready to issue a decision. But the cities and counties have based their lawsuit on an unusual legal argument, which the manufacturers are determined to fight to the bitter end.

Instead of suing the paint manufacturers on product liability grounds, the cities and counties argued that the companies created a “public nuisance.” That’s a centuries-old legal doctrine, but one almost never invoked in a case like this. Often it’s used by municipalities to combat ongoing activities, such as a homeowner operating a crack house or a factory with noxious emissions, “not to something that happened decades ago,” says Sean Hecht, an environmental law expert at the UCLA law school.

Public nuisance law provides recourse against anyone who “obstructs a public right,” Hecht says. “That language has never been construed in a case that looks just like this one. The question is whether it’s ‘obstruction of a public right’ to have put lead paint on all these buildings. Although [this case] is much wider in scope than most public nuisance cases, there’s an argument that it’s exactly the kind of thing that public nuisance law is meant to address.”

Public nuisance claims against lead paint manufacturers have failed in other states. Rhode Island won a trial in 2006 against three manufacturers, including NL and Sherwin-Williams, but the verdict was overturned by the state’s supreme court.

The basis of the California lawsuit is that the defendant companies’ predecessors understood the health hazard of lead paint but nevertheless energetically promoted its use as a key to improving the durability and water-resistance of house paint. The dangers of lead had been known “since antiquity,” Judge Kleinberg observed, and as early as the 19th century manufacturers were taking steps to warn their own workers against breathing lead dust on the factory floor.

Articles warning about children’s propensity to gnaw on painted surfaces and become poisoned with lead were common in medical journals by the 1920s: “A child lives in a lead world,” advised a 1924 paper. By the 1930s, parents were warned to avoid using lead-based decorative materials in children’s nurseries and bedrooms.

Yet the industry kept advertising residential lead paint — “Lead helps to guard your health,” declared a 1923 magazine ad for Dutch Boy lead paint placed by National Lead Co., the precursor to NL Industries. “Property owners … are using white-lead paint to prolong the lives of their houses.”

Even once they began to acknowledge the dangers, the industry showed “a disdain for the families,” says Nancy Fineman, an attorney for the cities and counties. In a 1956 letter introduced in court, Manfred Bowditch, the director of health and safety for the Lead Industries Association, complained to an Interior Department official about a Parade Magazine article reporting on lead hazards in the home. While acknowledging that the article was “mainly factual,” he asserted that the problem was concentrated in “the slums.”

“Aside from the kids that are poisoned,” Bowditch wrote, “it’s a serious problem from the viewpoint of adverse publicity. The basic solution is to get rid of our slums, but even Uncle Sam can’t seem to swing that one. Next in importance is to educate the parents, but most of the cases are in Negro and Puerto Rican families, and how does one tackle that job?”’

Evidence of the danger lead exposure poses for young children has become more alarming over the years. In 2012, the Centers for Disease Control and Prevention ceased setting minimum acceptable standards for children’s blood lead levels. That was based on scientific studies that couldn’t identify any concentration that didn’t have “deleterious effects” on children’s health. The only proper approach, the CDC said, is prevention “to ensure that no children in the U.S.” live in buildings with lead paint.

The defendants argue that such hazards weren’t known when residential lead paint was widely marketed. “This is litigation by hindsight,” says Antonio F. Dias, an attorney for Sherwin-Williams. “You’re applying today’s standards as if they existed in the early 1900s.”

He says that the risks to factory workers can’t be equated to those that developed decades later. ConAgra declined to comment on the case and a representative for NL Industries, now a holding company, could not be reached.

“Workers were literally working in clouds of dust,” Dias says. “There is absolutely zero evidence to suggest that anyone knew of the risks associated with old, deteriorating lead-based paint.” The paint industry learned of the dangers at the same time as the rest of the public in the 1940s, and then worked to develop alternatives, he says. “There is not a shred of evidence that these companies ever concealed anything concerning the medical or health risks associated with lead paint.”

Dias argues further that the problems presented by deteriorating lead paint is really one of housing code enforcement, which is a government responsibility. “There’s a question of whether the state and local governments were doing enough to enforce the housing code,” he says. The plaintiffs are going after the wrong targets, he says. “If there’s a public nuisance, shouldn’t the property owners be looked at?”

The scale of childhood lead poisoning remains dire, its victims facing lifetime consequences of stunted intellectual development as well as cardiovascular, immunological and endocrine problems. After 17 years, whether the public nuisance doctrine is adequate to meet their needs remains a question mark. But if not, what then?

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