Paint Companies Argue Lead Paint Appeal

Three current and former paint-industry companies are arguing their appeal in hopes of reversing a $1.15 billion judgment in the state of California that would require an abatement of contamination caused by decades-old lead paint.

In a hearing Thursday (Aug. 24), attorneys representing The Sherwin-Williams Company, ConAgra Grocery Products Co. and NL Industries Inc. argued for a reversal of the Dec. 2013 ruling, which initially dictated that all three companies must shell out a total of $1.15 billion to abate lead paint contamination in affected homes in the state of California.

Primary points of the companies’ argument included that moving forward with the abatement would uphold an unprecedented expansion of public nuisance law, and that the companies themselves should not be held liable for old advertisements that promoted the use of lead-based paint.

“The plaintiff historians were unable to provide a single advertisement where Sherwin-Williams advertised lead-based paint for interior use or white lead carbonate in old lead paint in any of its advertising,” Tony Dias, a partner at Jones Day, which is representing Sherwin-Williams for this case, told Durability + Design News.

The Lawsuit

The lawsuit, which was originally filed in 2000, intended to hold several gas, paint and chemical companies accountable for was deemed a massive public health crisis brought on by the presence of lead paint in a number of California homes and buildings.

© / Marilyn Nieves
Sherwin-Williams and two other former lead-paint manufacturers are appealing for a reversal of a $1.15 billion judgement that would require an abatement of contamination caused by the paint.

During the 2013 trial, Judge Kleinberg dismissed Atlantic Richfield and DuPont, subsequently ordering Sherwin-Williams, ConAgra and NL Industries to pay $1.1 billion into a fund that would be distributed to the 10 cities and counties affected, as needed. At the time, the court also denied Sherwin-Williams’ cross-claim, which cited that intact lead-based paint was not a hazard under state law, and that property owners were responsible for the abatement of the associated hazards.

In 2014, the judge increased the liability to $1.15 billion. That same year, after being denied the vacation of an amended judgement and the granting of a new trial, the three defendants filed notices of appeal, which effected an automatic stay of the judgement.

In the latest appeal, those paint companies still involved in the lawsuit appealed for an overturn of the abatement ruling, given that, according to the companies, it conflicts with evidence, is not in line with public nuisance law in the state of California, and conflicts with existing regulations that seek to prevent children being exposed to lead.

Sherwin-Williams asked the court to have the plaintiff identify specifically where the public nuisance existed in individual properties. The companies were not given permission to inspect these properties.

The defendants currently seek for the judgement to be vacated at minimum, remanding for a new trial.

Arguments for the Appeal

As it stands, the companies argue that they could not have known of the public health risk at the time the lead-based paints were produced decades ago. It was in 1978 that the federal government banned the use of this kind of paint in residential buildings, and lawyers for the companies note that the paint industry had already been working with authorities for 20 years to eliminate lead in interior paint. The companies also argue that the real risks associated with lead dust were not fully understood until the 1970s.

The impact of the coating has also been mitigated by both laws and mandated inspections to prevent hazards associated with lead-based paint, the paint companies assert. Government entities maintain that well-maintained paint does not pose a hazard to children, the attorneys for the firms note, and the responsibility for maintenance falls on property owners. If hazards do arise, people have not been maintaining their property accordingly, and inspectors have failed to enforce standards, the companies say.

The companies also argue that, in California, the Childhood Lead Poisoning Prevention Program was established three decades ago to address these concerns, and what has resulted is steadily declining blood lead levels. The program allows intact lead paint to remain in place.

If the judgment moves forward as decided in 2013, the companies argue that for properties where lead-based paint has been used, if the owners do not want them inspected, the property itself will essentially wind up on a government “blacklist,” which can impact value.

Meanwhile, a massive abatement program throughout the state for lead paint that’s been undisturbed in the past could have effects opposite their intention, the lawyers for the companies argue..

“The decisions here at the trial court put in place an abatement program that that is not only unwarranted, but is also unfair and unwise,” Dias said.

“There’s never been a program like this before in history, and as was cited at trial, the risks here of releasing more lead into the environment as part of the abatement program is a serious one.”