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 After a 19-year legal struggle, they have finally succeeded in
getting the companies to fund a remediation program, albeit on a
much smaller scale. Sherwin-Williams, ConAgra Grocery Products Co.
and NL Industries have agreed to a $305 million settlement,
according to a filing in Santa Clara County Superior Court in
California on Wednesday.
The resolution marks a rare success for a public nuisance claim,
under which counties and municipalities can sue corporations for
past activities - including those conducted decades ago - they say
have harmed communities.
High-profile public nuisance claims have proliferated in recent
years in the United States as local governments try to use the
courts to make corporations pay for societal ills like lead
poisoning, the opioid addiction crisis and climate change.
Yet the glacial pace and complex twists in California’s lead paint
case highlight just how difficult it can be to use the public
nuisance strategy against corporations, even in a state whose courts
are particularly consumer friendly.
A trial judgment in 2014 ordered the paint companies to pay $1.15
billion, but an appeals court decision led to the amount being
slashed by more than half in 2017. Once the companies had exhausted
the appeals process, they threatened to sue individual property
owners who received help cleaning up their properties, by claiming
they had failed to properly maintain their housing.
“This landmark settlement will allow thousands of homes to be
remediated, and as a result current and future generations of
California children will no longer face the threat of lead
poisoning,” said James Williams, County Counsel for Santa Clara
County, where the lawsuit was first filed.
“We’re pleased that we’ve been able to hold lead paint manufacturers
accountable and responsible,” he said.
The defendant paint companies did not admit any wrongdoing under the
settlement, and Sherwin-Williams and ConAgra welcomed the end of the
legal battle.
"Sherwin-Williams is pleased to have reached an agreement to resolve
this litigation, and it will continue to vigorously and aggressively
defend against any similar current or future litigation," the
company said in a written statement.
BITTERSWEET VICTORY
The number of U.S. children poisoned by lead has fallen sharply
since the United States banned the toxic metal from residential
paint and gasoline, during the 1970s and 80s.
But for California districts like Oakland and Los Angeles, where
childhood lead poisoning still exacts a heavy toll, the outcome of
the legal struggle is bittersweet.
In the decades it took the local governments to prevail, tens of
thousands more children in California have been exposed to dangerous
levels of lead, state public health data shows.
In Alameda County, for example, some zip codes have lead poisoning
rates higher than those found in Flint, Michigan, at the peak of
that city’s water contamination crisis (https://reut.rs/2XUaLWq).
County inspectors found dangerous paint dust in the East Oakland
home of 3-year-old Alexander Avila, who tested with lead levels more
than five times the elevated standard of five micrograms per
deciliter set by the Centers for Disease Control and Prevention
(CDC).
When a reporter visited the nearly century-old home last month,
Alexander was a ball of hyperactive energy. His mother Stephanie,
26, said he is able to speak few words and has trouble engaging with
other kids at preschool. She fears his past lead exposure will
affect him for life.
“People just don’t know what’s in their own houses, or the dangers
their kids can face,” she said.
A county program helped fix lead paint hazards at the home, but
public funds are scarce to repair housing before it can harm
children.
In nearby Hayward, California, another predominantly working class
city in the San Francisco Bay Area, five members of the Mariscal
family, including two children, were poisoned by lead paint at their
old home during 2017 and 2018, county health data and inspection
reports show.
Three year-old Isaac, who tested at levels more than twice the CDC’s
elevated threshold, suffered anemia - a common symptom of lead
exposure - and, like Alexander, has also had speech problems.
The CDC says there is no safe level of lead in children’s blood. At
least 4 million U.S. children remain at risk of exposure from
chipping paint or lead dust in their housing, the agency says. Lead
paint doesn't pose an immediate danger unless it is deteriorating.
Many of the 10 counties and cities that brought the lawsuit have
tens of thousands, or hundreds of thousands, of older housing units.
Neutralizing lead paint hazards in a single home can cost thousands
of dollars, so the settlement money may only cover the clean-up of a
fraction of homes that need work.
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“The litigation money can only go so far, but it’s a start,” Larry
Brooks, director of Alameda County's lead poisoning prevention
program, said in an interview last month.
More than 6,300 children have been exposed to elevated lead levels
in his county since 2000, when the litigation began, according to
county health data.
Although the United States banned lead paint sales in 1978, most old
housing still contains it, and thousands of U.S. neighborhoods still
have alarming poisoning rates, Reuters found in a series of articles
in 2017. (https://reut.rs/2MfnIGn)
NEW LEGAL PRECEDENT?
California jurisdictions are the first to have a public nuisance
verdict upheld against former lead paint manufacturers. Several
lawsuits in other states have failed since 2000, from Illinois to
Missouri and Rhode Island.
The California case may set a new legal precedent for seeking
remediation. Legal scholars say it could encourage new lawsuits
against paint companies, and Californian local governments report
receiving inquiries from counterparts in other areas of the country
interested in bringing their own nuisance claims.
In product liability lawsuits, attorneys must prove harm to
individual plaintiffs. In public nuisance cases, the plaintiffs
don’t have to prove harm to specific people. Instead, they can claim
that the defendants’ activities impeded broad community rights, such
as the public right to enjoy property.
In California, the plaintiffs argued the companies were responsible
for creating a public health threat and knew of the toxic dangers of
lead paint when they marketed it, without properly warning
consumers, for decades before the U.S. government banned its use in
homes.
The paint companies argued that they stopped marketing lead paint
products once risks became known. They contended that home owners
were responsible for preventing any poisoning hazards in their
living spaces.
Santa Clara County recently filed another public nuisance case
against opioid pill manufacturers, and similar cases are popping up
with increasing frequency nationwide.
Many of these suits share a common goal: making big business pay to
fix high-cost societal burdens that their profit-making activities
may have left behind.
Corporate defense attorneys worry that more wins for local
governments under the public nuisance doctrine could saddle
businesses with huge and unpredictable liabilities, in some cases
for decades-old actions they thought were safe at the time.
WHY SETTLE NOW?
The California local governments and the companies settled after a
marathon legal battle that saw both sides suffer setbacks.
Beyond seeing the earlier $1.15 billion judgment sharply cut back by
an appeals decision, the plaintiffs were concerned with
court-imposed restrictions on how the money could be used.
For instance, the terms had limited the remediation program to
housing built before 1951, and only indoor paint hazards could be
fixed. The local governments also faced a tight, four-year window to
complete the program, after which any unspent funds would be
returned to the paint companies.
As recently as January, court filings from the case show, lawyers
for the paint companies vowed to sue California property owners who
sought to use the remediation funds. Counties were concerned the
mere specter of these suits would have a chilling effect on the
remediation program, which will rely on housing owners' voluntary
participation.
It was an unusually bold move, legal scholars say.
“Talking about suing property owners is an aggressive tactic,” said
Bob Rabin, a tort law specialist at Stanford University.
“I can’t think of another public nuisance judgment where defendants
turned around and said recipients of the damages should be
disqualified because they are to blame,” he said.
With the settlement in place, these threats and court-imposed
limitations on how the money can be spent will now be lifted.
Paint companies have agreed not to target property owners with
lawsuits, cities and counties can take as much time as they need
fixing homes, and housing built through the 1970s – when lead paint
was still being sold – are also eligible for help, including on
exterior walls.
(Reporting By Joshua Schneyer; Editing by Michael Williams and Ross
Colvin)
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