Two companies remain as defendants in lead paint case following settlement

After nearly two decades of litigation, a paint manufacturer has agreed to pay over $60 million to 10 counties and cities to settle its part in a suit alleging that it knowingly marketed and sold the toxic material.

Two other companies remain as defendants and may be on the hook for around $700 million, according to Santa Clara County Chief Assistant Counsel Greta S. Hansen.

"We're pleased we were able to resolve this matter with one of the three defendants," said Hansen, who has been involved in the case for over 10 years. "We plan to pursue the rest of the outstanding judgment from the remaining defendants and are pleased we will have resources as soon as possible to initiate our abatement program and ensure fewer children experience lead poisoning."

NL Industries, formerly known as the National Lead Company, resolved its liability in the suit for $60.2 million in a settlement announced Wednesday. This was the most the jurisdictions could negotiate from the company while keeping it solvent, according to Hansen, who also added that NL Industries was the least liable of the three defendants.

The court has not yet approved the settlement but is expected to do so, according to plaintiffs' co-lead counsel Joseph Cotchett of Cotchett, Pitre & McCarthy LLP.

ConAgra Brands Inc. and the Sherwin-Williams Company remain as defendants. Plaintiffs expect the recalculation of the award, mandated by the 6th District Court of Appeal in November, to yield approximately $720 million, despite defendants claiming it should be closer to $400 million, according to Hansen.

Santa Clara County Superior Court Judge Thomas E. Kuhnle will hear arguments in June concerning how much ConAgra and Sherwin-Williams should have to pay.

"Although NL does not agree with the ruling in the courts, and by settling does not admit to any of the claims in the case, NL would prefer that its limited financial resources be used to fund public health programs rather than be spent on continued litigation," said NL Industries counsel Andre Pauka.

The lawsuit was filed by Santa Clara County and claimed NL Industries, ConAgra and Sherwin-Williams knowingly marketed toxic lead paint, constituting a public nuisance. County of Santa Clara v. Atlantic Richfield Co. et al., CV-788657 (Santa Clara Super. Ct., filed March 23, 2000).

San Diego and Oakland as well as the counties of San Francisco, Los Angeles, Alameda, Monterey, San Mateo, Solano and Ventura later joined the suit.

Santa Clara County Superior Court Judge James Kleinberg awarded the plaintiffs $1.15 billion in 2013, finding the companies liable for public nuisance.

An appellate panel upheld Kleinberg's ruling last November concerning the defendants' liability for homes built before 1951 but overturned it regarding homes built from 1951 to 1980. The case was remanded back to state court to recalculate the amount to cover the costs of remediating pre-1951 homes.

A ConAgra spokesperson declined to comment Thursday. A Sherman-Williams Company spokesperson could not be reached.

Lead paint manufacturers have been able to defeat several lawsuits seeking to find them accountable for toxic material in the past. The state Legislature passed a series of bills this month designed to make it more difficult for manufacturers to escape liability, according to Assemblyman David Chiu, D-San Francisco, who led the effort.

Plaintiffs' attorney Mary Alexander of Mary Alexander & Associates also said the standard of proof to substantiate a public nuisance claim is lower in California compared to the rest of the country.

As part of the settlement, NL Industries agreed to withdraw its support for a November ballot initiative, the Healthy Homes and Schools Act, which would remove lead paint as a public nuisance and spread the $3.9 billion cost of remediating the paint to taxpayers over 35 years.

"These defendants knew about the hazards of lead paint going back 50 to 75 years, and they continued to sell it because of profits," Cotchett said. "Now they're trying to con the California public to save them from the liability that they caused."