In a surprising but welcome ruling, a California judge recently ruled that three lead paint companies are responsible for creating a public nuisance with their products, which were routinely used in homes before 1978. Ten cities and counties had sued Sherwin-Williams, NL Industries and ConAgra Grocery Products (as a successor company to W.P. Fuller & Co.) for the widespread lead paint hazards suffered by property owners across the state. They argued the manufacturers should be required to help clean it up, even though their product was legal at the time.
After a non-jury trial lasting some five weeks, the judge ordered the companies to pay $1.1 billion in abatement-related expenses to the municipalities. The order broke a string of losses in similar lawsuits brought by municipalities nationwide, which so far have failed in seven states.
One key to the plaintiffs’ case seems to have been evidence that some manufacturers knew that lead paint caused heavy-metal poisoning in children as early as the 1930s but took steps to conceal the risk from the public. The evidence was a 1937 report from a conference held to inform staff doctors at paint companies about the dangers of lead poisoning. The attendees were apparently ordered not to discuss the problem with others or to take any notes on the presentation.
A lawyer for Sherwin-Williams has said the 1937 conference was about occupational lead hazards, not lead paint. The companies also argued that numerous sources other than paint contribute to lead poisoning in children and, moreover, that the responsibility for poisoning caused by lead paint should fall on landlords who fail to keep lead-painted areas in good repair.
More than 3.5 million California homes are presumed to contain lead paint, according to the state legislature, and the numbers are likely similar here in New York and in most states.
Landlords who fail to mitigate or remediate known lead paint hazards should indeed be held responsible for the risk posed to children. Requiring landlords live up to their legal responsibility to provide reasonably safe premises, however, does not excuse the manufacturers of this ubiquitous yet potentially deadly product.
These paint companies could pay their shares of the judgment and change the future for millions of children. Instead, it seems they plan to spend the next decade or so appealing the decision.
Source: Insurance Journal, “Paint Manufacturers Held Liable for $1.1 Billion in California Lead Paint Case,” Joel Rosenblatt and Jack Kaskey, Bloomberg, Dec. 18, 2013