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California Counties Want the Lead Out!
By Robert Warne - July 27, 2001

A lead-based paint battle in the California courts that includes the counties of San Francisco, Oakland, Alameda, Santa Clara, Solano, Santa Cruz, Kern and the San Francisco Unified School District against the Chemical Industry is shaping up to potentially rival tobacco liability settlements. With the next hearing scheduled for Sept. 11, people are paying close attention to this case because the decision has the potential to set the trend for future lead-based paint claims.

The facts about lead-based paint are clear. Such paint is unhealthy when particles and dust are ingested or inhaled and find their way into the bloodstream. A study recently conducted by the Pediatric Academic Societies finds even minimal exposure lowers intelligence. The Bush administration, which has fallen under environmental scorn, upheld the part of Clinton’s environmental initiative relating to lead regulation.

Victims of lead-based paint poisoning are typically children exposed in low-income, time-worn city housing. Public agencies have been absorbing the costs of medical treatment and remedial education to victims for decades.

Within the last 10 yeas, San Francisco alone has reportedly treated some 600 neurologically impaired children for lead-paint poisoning.

Plaintiffs accuse chemical companies of conspiring to promote and sell a toxic product. Their main argument, which has been revised three times at the request of Santa Clara County Superior Court Judge Gregory Ward, claims the paint is a public nuisance and the chemical companies are liable. Kathryn Zoglin, a deputy Santa Clara County counsel, explained that it’s not because the product is defective that it’s a public nuisance. Rather, she says, the reasoning for the public nuisance charge is based on how the companies promoted the paint and failed to warn the public of potential health hazards.

Along with the public nuisance charge, the chemical industry is also facing charges of fraud, negligence and violations of the state Business and Professions Code.

The defendants contend there is no legal basis for the public nuisance claim. They consider the property owners to be liable. The defendants also note they consider themselves the whistle blower on health risks associated with lead-based paint, by conducting the studies and making the findings public. Defendants argue they voluntarily stopped making lead-based paint 20 years before it was banned in 1978 by the federal government.

Chemical companies, without admitting guilt, feel this case at best is a product liability claim. If the judge rules it a product liability claim, it will be easier to defend and less costly in the long run for the defendants. Such a case would require payments for proven past injuries, but doesn’t mandate any actions to prevent future claims.

Defendants are Sherwin-Williams, Arco, American Cyanamid, Conagra Grocery Products, E.I. Du Pont de Nemours, O’Brien Corp., Glidden Co., SCM Chemicals; the Lead Industries Association and NL Industries.

If history is any indicator, the chemical industry has a 40-case track record of not settling similar cases, and vows to fight this one indefinitely.

Courts across the county and California’s Attorney General Bill Lockyer are said to be closely monitoring the suit. Either way the case goes, it is estimated that hundreds of millions of dollars are at stake, including the value of corporate securities.

 
 

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