Facts

In 2000, ten counties and cities, acting on behalf of the People of the State of California filed a suit against the Atlantic Richfield Co., the Sherwin-Williams Co., ConAgra Grocery Products, NL Industries, and E. I. DuPont de Nemours and Co., for its manufacturing and sale of lead-based paint. In 1978, the U.S. Consumer Products Safety Commission banned the use and sale of lead-based paint for residential use.

The plaintiffs brought causes of action for fraud, strict liability, negligence, unfair business practices, and public nuisance.

After years of litigation, the remaining claim was public nuisance.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that defendants created a nuisance by knowingly selling and manufacturing lead-based paint that was harmful to children, who ingested it. Plaintiffs claimed that the paint companies knew that lead paint was dangerous and toxic to children but defendants promoted and sold it in the 10 public entities. Plaintiffs further claimed defendants should be accountable to abate the nuisance and pay for the removal of the lead paint found in half of the 4.7 million homes built before 1978 when lead paint was banned.

Lead causes brain damage and learning disabilities in children, which is permanent and irreversible.

DEFENDANT'S CONTENTIONS:
The paint companies contended that they did no know that lead paint was hazardous to children and that home owners are responsible to clean up their own homes.

Defendants also contended that there was no public nuisance. Defendants also contended that California's Childhood Lead Poisoning Prevention Program has resulted in a dramatic reduction in blood lead levels in children and that those levels are at historic lows and continue to decline.

Defendants argued that plaintiffs' abatement plan is unnecessary, claiming that the most effective way to continue to reduce children's blood lead levels is to enforce existing laws and programs. As a matter of law, intact lead-based paint is not considered to be a hazard. Defendants claimed that abating intact lead paint could cause more harm than good because the safest way to deal with lead-based interior paint is through proper owner maintenance and repainting.

Defendants argued that the advertisements placed by the former manufacturers of lead-based paint were both truthful and lawful. They encouraged property owners to maintain their properties and to repaint. There is no proof, and no proof was presented at trial, that any advertisements by the defendants have caused the alleged hazards to children today from low levels of lead dust, which have multiple sources.

Defendants claimed the case was litigation by hindsight and that the plaintiffs' case for present-day "public nuisance" rests on scientific knowledge that changed over the years and was not known or knowable by either public health officials or lead paint manufacturers when master painters preferred, and governments recommended and specified, white lead pigment for use in homes.

Finally, defendants argued that plaintiffs did not prove the presence of any defendant's product in any home today that is causing imminent risk of harm to children, and the fundamental element of public nuisance was not proven.

Result

Judge James B. Kleinberg ordered three paint companies to pay $1.15 billion to a fund to remove toxic lead paint from homes in 10 counties and cities in California. Defendants E.I. Du Pont de Nemours and Company and the Atlantic Richfield Company were dismissed.

Other Information

FILING DATE: March 23, 2000.