A trial began a few weeks ago before Superior Court Judge James Kleinberg, an appointee of Governor Gray Davis. He is hearing a case without a jury to determine whether five paint manufacturers, including Atlantic Richfield, NL Industries and Sherwin Williams should be held liable and ordered to remove led paint from an estimated 5 million homes at a cost of about $1 billion.
Led by Santa Clara County, local governments sued the industry in 2000, alleging paint manufacturers knew of the dangers of lead paint as early as the late 1890’s and yet sold it to consumers without warning for decades. Lead paint was banned by the federal government in 1978 for residential use – 22 years before this case was filed.
The big twist in this case is that the local governments have hired contingency fee lawyers to represent them, which stand to take 17% of the proceeds from any eventual settlement or verdict. That might not seem like a lot, but when you are conservatively talking proceeds of over $1 billion, the amount they will earn is not chump change.
But here’s the kicker: Unlike cases involving individuals who sue over health hazards, which can be difficult to prove against an entire industry, California officials have creatively alleged that paint manufacturers violated the state’s public nuisance laws, creating a much lower bar for liability. Lead paint, they argue, has created a “substantial and unreasonable injury” to anyone exposed to it in an older home, notwithstanding recent studies that have found little evidence that children in California face health problems from elevated lead levels in their blood.
What’s more, the judge also ruled in pretrial rulings that government lawyers will not have to show that lead paint actually harmed any particular families. Instead they must provide reasonable proof that the industry assisted in the creation of a public nuisance through activities, such as promotion of their product, i.e., advertising – something almost every business must do.
The bottom line is that with little scientific evidence in their favor, trial lawyers are moving the goal posts to make it easier for them to score a massive verdict in this case. The fact that the paint removal may stir up lead dust and may cause more harm than good is less than an afterthought compared to the millions in potential fees.