Lead Poisoning Prevention Joint Powers Authority Press Release: Court of Appeal Upholds Landmark Ruling Affirming Judgment Ordering the Removal of Lead Paint from Pre-1951 Homes
ALAMEDA COUNTY LEAD POISONING PREVENTION PROGRAM
A Joint Powers Authority serving the cities of Alameda, Berkeley, Emeryville and Oakland
2000 Embarcadero, Suite #300 ▪ Oakland, CA 94606-5300
Hon. Desley Brooks, City of Oakland Hon. Susan Wengraf, City of Berkeley
Hon. Mary Hatsume Vella, City of Alameda Hon. John J. Bauters, City of Emeryville
Hon. Wilma Chan, Alameda County Gwen Hardy, Community Representative
FOR IMMEDIATE RELEASE
November 17, 2017
Court of Appeal Upholds Landmark Ruling Affirming Judgment Ordering the Removal of Lead Paint from Pre-1951 Homes
On November 14th, 2017 after a seventeen year legal battle that broke new legal ground, California’s Sixth District Court of Appeal unanimously upheld a lower court decision ordering three lead paint manufacturers to clean up lead paint inside older homes in the County of Alameda and nine other California cities and counties. Today’s ruling holds defendants Sherwin-Williams Company, NL Industries, Inc., and ConAgra Grocery Products Company responsible for the public nuisance created by lead paint inside pre-1951 homes.
As a nationally recognized leader in lead poisoning prevention staff from the Alameda County Lead Poisoning Prevention Program has provided countless hours of support to the legal staff involved in this case through expert witness testimonies and documentation related to the over 6000 child lead poisoning cases managed by the program since its inception in 1991.
The Alameda County Lead Poisoning Prevention Program is governed by a Joint Powers Authority Board of Directors comprised of a representative of the City Council of each County Service Area city and the Alameda County Board of Supervisors, and a Community Representative.
The first complaint in this case was filed in 2000 by then Santa Clara County Counsel Ann Ravel and soon after Alameda County and eight other cities and counties joined the litigation, and together they pursued the case aggressively for more than seventeen years. The counties and cities alleged that defendants Sherwin-Williams Company, ConAgra Grocery Products Company, and NL Industries, Inc.’s aggressive marketing of lead paint, which they knew was highly toxic to young children, has created a public nuisance that threatens the health of California’s children to this day.
In 2013, Honorable Judge James P. Kleinberg of Santa Clara Superior Court issued a $1.15 billion judgment in favor of the counties and cities, ruling that NL Industries, ConAgra and Sherwin-Williams were liable for the harm that they created.
Today’s ruling upheld the existence of the nuisance as to pre-1951 homes, overturned it as to homes built between 1951-1980, and remanded the case to trial court for further proceedings to limit the $1.15 billion abatement fund to an amount sufficient to address the problems lead paint poses in pre-1951 housing. That amount will be determined in court.
According to the Centers for Disease Control (CDC) and California’s Childhood Lead Poisoning Prevention Branch, lead paint is the primary cause of lead exposure for children who live in older homes. The California Legislature has declared that “childhood lead exposure represents the most significant childhood environmental problem in the state today.” (Health & Saf. Code, § 124125.)
In 2009 alone, at least 10,875 children in the cities and counties prosecuting the case had been poisoned by lead. In 2012, the CDC released a report, the CDC Response to Advisory Committee on Childhood Lead Poisoning Prevention Recommendations in “Low Level Lead Exposure Harms Children: A Renewed Call of Primary Prevention, ” finding that “no safe blood lead level in children has been identified.” Even at the lowest levels, lead causes permanent neurological damage to children, decreasing IQ and causing other serious health consequences.
More than a decade of pre-trial maneuvers, appeals, false starts, and delays preceded the ruling, which will allow local governments to eliminate the health hazards posed by lead paint in homes built before 1951.
During the 2013 trial in the case, the counties and cities presented evidence that the three defendant paint companies aggressively promoted and sold lead paints for use in homes despite knowing that those paints were highly toxic, particularly to children. The trial court ruled that Sherwin-Williams, NL, and ConAgra are liable for cleaning up the hazard they created, and they appealed. The Court of Appeal found the evidence at trial established that these companies actually knew that interior residential lead paint posed a serious risk of harm to children. Nonetheless, these companies “repeatedly promoted its lead paint for interior residential use.” These promotional activities were “inherently misleading because [they] implicitly asserted that [lead paint] was safe for such use when it was not.”
The case was litigated by the County of Santa Clara, the County of Alameda, the City of Oakland, the City and County of San Francisco, the City of San Diego, the County of Los Angeles, the County of Monterey, the County of San Mateo, the County of Solano, and the County of Ventura. The plaintiffs are represented by their own County Counsel and City Attorney’s Offices, working in collaboration with the law firms of Cotchett Pitre & McCarthy LLP, Motley Rice LLP, Mary Alexander and Associates, and the Law Offices of Peter Earle.
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