Lead-Paint Decision: Providing A Safer Place for Children
Judge Orders Lead Paint Companies to Pay $1.15 Billion into State Fund to Clean Affected Homes
He never considered the possibility that their home could contain lead paint. But, like many other California homes, the toxin was buried just under the surface of its walls, windowsills and floorboards.
Their apartment was austere—a run-down structure with nails sticking through the carpet. In an effort to protect Antonio from the dangers underfoot, Stone kept his son on a bed against a decaying wall. As the baby toyed with peeling paint, he was also consuming a huge amount of lead particles.
Stone isn’t sure how long Antonio was exposed to the toxin, but looking back, he said he noticed that his once-quiet boy had become fussy. Nothing Stone said elicited a response from Antonio, and Stone said he occasionally raised his voice in frustration.
What he didn’t realize was that the lead poisoning had caused Antonio to lose his hearing. The guilt from that realization was, for Stone, the worst part of the ordeal.
“I felt like I had punished him for something he didn’t know he did,” he said.
When doctors ran a blood lead level test at his one-year check-up, the results were so high the doctors ordered a second test to be sure it was accurate, Stone said.
Antonio, now 3, suffers from hearing loss, behavioral problems and anemia caused by lead poisoning. Because of his young age, it’s still unclear what other developmental or physical problems may be present, he said.
Still, Stone said his son is doing well. Antonio has a hearing aid and undergoes blood lead tests every three months—down from every other week immediately after the initial diagnosis. The boy’s preschool teachers are also working with him on his behavioral difficulties, and have been successful, Stone said.
“I just hope he keeps progressing and lives a full, healthy life,” he said.
Antonio may be among the last victims of lead poisoning in 10 California counties and cities, thanks to a recent decision in a public nuisance lawsuit that will enable these jurisdictions to clear lead paint from impacted homes.
“Hopefully this will save children whose parents don’t know about [lead paint],” he said of the ruling. “They won’t have to go through what I had to go through with my child.”
Earlier this year, producers of lead-based paint were ordered to pay $1.15 billion into a fund for clean up of lead paint in homes by the Superior Court of California for Santa Clara County in People v. Atlantic Richfield Company, et al. The lawsuit was filed by 10 California cities and counties against five of the nation’s largest manufacturers and sellers of lead pigment and paint. Three of those companies were found liable—Sherwin-Williams, ConAgra and NL Industries.
This decision concludes 13 years of litigation, and will help prevent more cases caused by lead paint in up to 2.5 million homes in the 10 California jurisdictions involved—many of which include low-income neighborhoods.
The plaintiffs’ team produced a mountain of evidence proving that, for almost a century, the defendants promoted, marketed and sold products they knew to be dangerous—indifferent to the health effects disproportionately impacting low-income children in these California jurisdictions, said Fidelma Fitzpatrick, who served as co-lead counsel for the plaintiffs. Fitzpatrick is with the law firm Motley Rice LLC.
“For decades, the defendants have been treating these kids as disposable and continue to do so,” she said. “That is one of the most reprehensible things humanly imaginable.”
In fact, the evidence in the lawsuit showed that the paint companies knew of their product’s health hazards since the early 20th century, which had been proven through studies – some of which were commissioned by the defendant companies — that detailed the hazardous effects of lead paint dated as early as 1900. What’s more, the defendants also encouraged people to use lead paint long after the dangers were known to them through advertisements and in-store promotions, the court found.
The court award will not be paid directly to injured children like Antonio, but will help prevent future injuries by removing the hazard.
The final decision increases the award by $50 million from the tentative ruling issued on December 16, 2013, due to the court’s recalculating the costs of abatement, Fitzpatrick said.
“Abatement is a standard way to address a public nuisance,” Nancy Fineman, co- lead counsel for the plaintiffs said. “Without it, government programs, property owners and parents would be individually responsible for removing the lead paint. This allows for a concerted group effort.” Fineman is with the law firm Cotchett, Pitre & McCarthy, LLP.
Initially filed in 2000, the lawsuit accused the defendants of fraud, strict liability, negligence, unfair business practices, and public nuisance. After winding through California’s court system for several years, the plaintiffs filed their fourth amended complaint in 2006, which limited the allegations to public nuisance with the exclusive remedy of abatement.
Like most high-stakes litigation, the defendants used their vast financial resources to drag out the process by filing multiple extensions and appeals, said Mary Alexander, of Mary Alexander & Associates, P.C., co-lead counsel for the plaintiffs.
Still, Fitzpatrick said, the defense’s aggressive tactics and refusals to settle were surprising.
“The defense attorneys here have not approached this case in ways other defendants have,” Fitzpatrick said. “For 13 years, the defendants racked up legal fees, and every day more children were poisoned.”
“At some point, you expect them to face the facts and to look at what was known and what was knowable,” she said.
The defendants plan to appeal the decision, Bonnie J. Campbell, spokesperson for the defendants, said in a statement following the tentative ruling. However, Alexander is confident that the trial court ruling will stand.
“We were very careful with the evidence,” Alexander said. “This verdict is about basic fairness. Entities that knowingly cause harm should participate in abatement.”
The effects of lead poisoning include damage to the nervous system and internal organs, as well as developmental disabilities.
Although lead paint was banned by the U.S. government in 1978, the threat remains because of the almost universal failure to remove paint applied prior to the ban. And unlike most toxins found in homes, the CDC warns that no level of lead exposure is safe for children.
But, like Stone, most people don’t realize that lead paint is still a public health threat, Alexander said.
“Lead poisoning continues to be a clear, present and imminent danger to millions of children,” she said. Alexander also holds a Master’s in Public Health and was a toxicologist with OSHA prior to becoming an attorney.
“The worst thing about lead poisoning is that it’s so insidious,” she said. “The only way to know conclusively that it’s happening is through a blood test.”
In fact, the threat is so pervasive nationwide that the CDC recommends children living in homes built before 1978, therefore after the ban was in effect, get a blood lead test before their first birthday. But many of the California victims do not have access to basic pediatric care, which can dramatically worsen the injury, Fitzpatrick said.
Lead safety advocate Tamara Rubin said that it’s important to recognize that every family could be at risk because lead paint can be found in homes and schools in every neighborhood.
“This is your problem,” Rubin said. “Not just your neighbor’s problem or somebody else’s problem.”
Rubin says that the financial impact of lead poisoning is underestimated by state and federal agencies, and can stretch the budget of economically-secure families. Costs include moving or abatement expenses, increased health care costs and even lost income for the parent when a child needs constant care, she said.
Two of Rubin’s four sons contracted lead poisoning during renovations on their Portland, Ore., house because the contractor failed to follow safety measures necessary for renovating homes built prior to the ban. As a result, the poisoned children will deal with a lifetime of learning difficulties, gastro-intestinal problems, and weakened immune systems, among others, she said.
“My kids were immediately violently ill,” Rubin said, “and nobody considered testing them for lead poisoning.”
Lack of public awareness inspired Rubin to found her non-profit advocacy organization Lead Safe America, and to produce and direct the upcoming documentary MisLEAD: America’s Secret Epidemic. The film shows the challenges she and other families face when dealing with lead poisoned children, and outlines how paint manufacturers spent decades lobbying lawmakers and launching misinformation campaigns to keep lead paint on the market.
Stone said he was pleased with the abatement award in Atlantic Richfield, but that it’s equally important for the case to educate parents about the dangers of lead poisoning.
“I just want the information to be out there,” he said.
Leading the team of attorneys were (in alphabetical order) Mary E. Alexander of Mary Alexander & Associates, P.C. in San Francisco, Joseph W. Cotchett and Nancy L. Fineman of Cotchett, Pitre & McCarthy, LLP in Burlingame, Calif., Peter Earle of the Law Office of Peter Earle in Milwaukee, Wis., and Fidelma L. Fitzpatrick of the firm Motley Rice in Providence, R.I.
Co-counsel in the case were Danny Chou, Greta Hansen, and Jenny S. Lam of the Santa Clara County Attorney General’s Office, Rebecca Archer of the San Mateo County Counsel’s Office, Solano County Counsel Dennis Bunting, Paul Prather of the San Diego City Attorney’s Office, Owen Clements and Erin Bernstein of the San Francisco City Attorney’s Office, Robert Ragland and Andrea Ross of the Los Angeles County Counsel’s Office, William M. Litt of the Monterey County Counsel’s Office, Andrew J. Massey of the Alameda County Counsel’s Office, William E. Simmons of the Oakland City Attorney’s Office, and Eric J A Walts of the Ventura County Counsel’s Office, Bob McConnell, Michaela Shea McInnis, and Jonathan D. Orent of Motley Rice, Vincent I. Parrett and Aileen Sprague, formerly of Motley Rice, Brian M. Schnarr of Cotchett, Pitre & McCarthy, and Sophia M. Aslami and Jennifer L. Fiore of Mary Alexander & Associates.
This team was awarded the 2013 Public Justice Trial Lawyer of the Year Award at the 2014 Public Justice Gala & Awards Dinner in Baltimore, Md.