Santa Clara Superior Court Judge James by Jason Doiy.4-19-2011.055-2011
Santa Clara Superior Court Judge James by Jason Doiy.4-19-2011.055-2011 (Jason Doiy)

SAN FRANCISCO — Three companies must pay $1.1 billion to clean up lead paint on older homes around the state, a Santa Clara County judge ruled Monday.

After a 13-year legal battle, Judge James Kleinberg sided with a group of municipalities and ordered that defendants ConAgra Grocery Products, NL Industries Inc. and the Sherwin-Williams Company fund a plan to remove remnants of the toxin applied before lead was banned in 1978. The judge found the firms’ decades-long manufacture or promotion of white lead paint for interior use had created a public nuisance.

But Kleinberg dismissed allegations against defendants Atlantic Richfield Co., or ARCO, and E.I. du Pont de Nemours & Co.

Kleinberg’s statement of decision follows a bench trial conducted over several weeks this summer. If the ruling stands up on appeal, it would be the first government win in a spate of public nuisance lead paint cases across the nation.

Plaintiffs—led by Santa Clara County and eventually joined by nine major counties and cities in the state—had argued that lead continues to pose a disproportionate hazard to low-income children, who are more likely to live in homes built before lead was phased out of paint.

Defense lawyers for the corporations had pointed to statistics showing that blood-lead levels had fallen sharply since federal and state bans began taking effect almost four decades ago. Abatement was not just costly, they argued, but pointless.

However, Kleinberg wasn’t moved. “Consistent with their arguments throughout the trial, the defendants rely on statistics and percentages,” Kleinberg wrote in his 109-page statement of decision. “When translated into the lives of children that is not a persuasive position. The court is convinced there are thousands of California children in the jurisdictions whose lives can be improved, if not saved through a lead abatement plan.”

Kleinberg also rejected defense arguments that the dangers of lead paint were not known for the first half of the last century

“The evidence is to the contrary,” he wrote. “Before the turn of the 20th century lead was known to be toxic.”

Plaintiffs had asked for $900 million in abatement, but Kleinberg required they pay $200 million more. Los Angeles County stands to receive $605 million in abatement funds. Santa Clara and Alameda counties will each receive $99 million. San Francisco is set to receive $77 million. San Mateo, Solano and Monterey Counties will also receive funds, as will the cities of San Diego and Oakland.

Kleinberg also awarded plaintiffs legal fees “to the extent permitted by law.”

In a prepared statement on Monday, defense spokeswoman Bonnie Campbell said Kleinberg erred by refusing to let a jury decide the case. Campbell, a former Iowa attorney general, called his decision “at odds” with California law and decisions in other states.

Defense counsel had repeatedly argued in court briefs and at trial that their clients were being made to pay for products that had been legally sold and whose negative health effects could not be known without hindsight.

Campbell returned to that argument in her statement. “No public health official recommended any restriction on that use, because the risks to children alleged today were unknown and unknowable decades ago,” she said. “The decision rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint.”

She added: “This decision is more likely to hurt children than help them, and it will likely disrupt the sale, rental, and market value of all homes and apartments built before 1978.”

Allen Ruby of Skadden, Arps, Slate, Meagher & Flom defended ConAgra. NL Industries was represented by Donald Scott of Bartlit Beck Herman Palenchar & Scott. Jones Day’s Paul “Mickey” Pohl represented Sherwin-Williams.

Santa Clara County Counsel and the San Francisco City Attorney’s Office led prosecution of the case, working with private counsel at Burlingame-based Cotchett Pitre & McCarthy, Motley Rice, Mary Alexander and Associates and the Law Offices of Peter Earle.

On Monday afternoon, San Francisco City Attorney Dennis Herrera called Kleinberg’s decision “a historic win.”

“We’re overjoyed for the people that will get help in righting a great wrong as we remove this harmful toxin and prevent untold harm to future generations of children,” he said in a prepared statement. “But the real legacy of this victory is that manufacturers now know that in California they’ll be held accountable if they put a harmful product into the stream of commerce.”

Since the case was filed in 2000, it has faced a tough slog. The same companies defeated similar suits brought in seven other states. Rhode Island’s Supreme Court even made that state reimburse their legal expenses after overturning a trial verdict. In fact, none of the five defendants had been made to pay a penny in clean-up costs, company attorneys told The Recorder earlier this year.

Kleinberg acknowledged that similar suits had failed elsewhere in the country. “While this Court may take judicial notice of decisions from other jurisdictions that pertain to lead paint litigation … those cases are not controlling,” he stated.

While finding that the conduct of ConAgra, NL Industries and Sherwin-Williams “were substantial factors in causing” the alleged public nuisance, Kleinberg said plaintiffs’ experts “were unable to make the case that ARCO promoted lead paint in the jurisdictions,” he wrote. “At most ARCO promoted paints containing lead for only two years and that was to the trade, not the general public.”

Arnold & Porter’s Jonathan Stern represented ARCO.

Kleinberg also dismissed allegations against DuPont, represented by Clement Glynn of Walnut Creek’s Glynn & Finley, finding the company never sold interior paint containing white lead pigments. In addition, DuPont had been an early leader in developing alternatives to lead-based paint, Kleinberg stated.

“It is telling that DuPont distanced itself from other paint companies by its products that were lead-free and used that quality as a key advertising theme,” he wrote.

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