Canada: Landmark Lead Paint Abatement Case Decided In California

Last Updated: January 24 2014
Article by Dianne Saxe

In a landmark lead paint liability case, the Superior Court of California has held three of five paint companies liable for public nuisance. The court ordered them to clean up lead paint in California residences painted before 1978, at a total cost of $1.15 billion. The use of lead in interior residential paint was permitted until after 1978, i.e. the manufacture and sale of lead paint was legal when these homes were painted. See People v. Atlantic Richfield Company, et al. Superior Court of California, County of Santa Clara, Case No. 1-00-CV-788657. The court concluded that lead paint in older homes is a public nuisance today, because it still poses a serious health risk to thousands of children in tens of thousands of homes. Three of the paint companies did much more than merely manufacture a legal, if risky, product, back in the 1960s and 1970s. They actively promoted the use of lead paint for interior use, knowing it was hazardous to children. As one of the paint company's internal publications stated over 100 years ago, in 1900, "It is also familiarly known that white lead is a deadly cumulative poison, while zinc white is innocuous. It is true, therefore, that any paint is poisonous in proportion to the percentage of lead contained in it." This is the distinguishing, "far more egregious" factor that justifies retrospective cleanup liability, unlike a conventional product liability /negligence case. Could such a decision happen here? It would be much harder, but it is possible, especially now that the California plaintiffs have dug out all the evidence... Here is the text of the decision:

SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SANTA CLARA 10

E-FILED

Jan 7, 2014 4:06 PM

David H. Yamasaki

Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara

Case #1-00-CV-788657 Filing #G-59619

By R. Walker, Deputy

11 THE PEOPLE OF THE STATE OF CALIFORNIA, 12

Plaintiff,

13 vs. 14 15 ATLANTIC RICHFIELD COMPANY, CONAGRA GROCERY PRODUCTS 16 COMPANY, E.I. DU PONT DE NEMOURS AND COMPANY, NL INDUSTRIES, INC., 17 and THE SHERWIN-WILLIAMS COMPANY, 18

Defendants.

19 20 21

AND RELATED CROSS-ACTION.

22 23 24 25 26 27 28 Case No.: 1-00-CV-788657

STATEMENT OF DECISION

People v. Atlantic Richfield Company, et al. i Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619

1 TABLE OF CONTENTS

2

I. THE PARTIES................................................................................................................... 1

3 A. Plaintiff and Cross-defendants............................................................................ 1

4 B. Defendants............................................................................................................. 2

C. ARCO, ConAgra, and successor liability........................................................... 3

5

D. Decision on successor liability of ARCO and ConAgra................................... 6

6 II. PRE-TRIAL PROCEDURAL HISTORY AND RELEVANT AUTHORITIES............... 6

7 III. TRIAL................................................................................................................................. 9

8 IV. THRESHOLD FINDINGS............................................................................................. 10

V. PLAINTIFF'S LEGAL AND EVIDENTIARY POSITIONS......................................... 11

9

A. Legal standards.................................................................................................... 11

10 B. Defendants' Knowledge..................................................................................... 12

11 C. Harm from Lead is Well-Documented.............................................................. 15

12 D. The Inevitable Deterioration of Lead Paint is Not Disputed........................... 18

E. Young Children are at Greatest Risk............................................................... 18

13

F. Experts, Federal Agencies, Physician Associations, and the Public

14 Entities Agree That Lead Paint Is the Primary Source of Lead

Exposure for Young Children Living In Pre-1978 Housing............................. 19

15 G. Lead Paint is Prevalent in the Jurisdictions.................................................... 20

16 H. The Continuing Effect of Lead Paint................................................................ 21

17 I. Defendants' Manufacturing of Lead Pigments for Use in House Paints

and as Members of Trade Associations............................................................ 22

18 J. Role of the Trade Associations.......................................................................... 23

19 K. Knowledge of the Defendants – Generally....................................................... 25

L. Knowledge of the Individual Defendants......................................................... 26

20

  1. 1. ARCO....................................................................................................... 26

21

  1. 2. ConAgra................................................................................................... 27

22 3. DuPont...................................................................................................... 28 23 4. NL.............................................................................................................. 29 5. SW............................................................................................................. 30 24

  1. M. Causation............................................................................................................. 31

25 N. Defendants Promoted and Sold Lead Pigment and/Or Lead Paint in

26 the Jurisdictions.................................................................................................. 32

O. Defendants promoted lead paint even though alternatives were

27 available............................................................................................................... 43

28 VI. SUMMARY OF THE DEFENDANTS' ARGUMENTS............................................... 43

VII. INDIVIDUAL DEFENDANTS' RESPONSES............................................................. 45

People v. Atlantic Richfield Company, et al. i Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 A. ARCO................................................................................................................... 45 2 B. ConAgra............................................................................................................... 50

  1. DUPONT.............................................................................................................. 54

3

  1. NL INDUSTRIES................................................................................................ 62

4 E. SHERWIN-WILLIAMS....................................................................................... 72 5 VIII. SHERWIN-WILLIAMS' CROSS-CLAIM.................................................................... 78 6 IX. THE PEOPLE'S RESPONSE TO SW'S CROSS-COMPLAINT............................... 79

  1. DEFENDANTS' AFFIRMATIVE DEFENSES............................................................. 80

7

  1. JOINT AND SEVERAL LIABILITY.............................................................................. 84

8 XII. REMEDY.......................................................................................................................... 85 9 XIII. FINDINGS OF FACT AND CONCLUSIONS OF LAW............................................ 93 10 A. Findings of Fact................................................................................................... 93 B. Conclusions of Law............................................................................................. 94 11 SUMMARY OF DECISION......................................................................................... 110 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 People v. Atlantic Richfield Company, et al. ii Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 The People seek an order to abate the alleged public nuisance created by lead paint 2 manufactured or sold by five Defendants in ten jurisdictions in California. Filed thirteen years 3 ago, the matter came on for a bench trial on July 15-18, 22-25, 29-30, August 1, August 5-8, 4 August 12-15, August 19-22, 2013 in Department 1 (Complex Civil Litigation), the Honorable 5 James P. Kleinberg presiding.1 The appearances of counsel for each trial day are as noted in 6 the record. Pursuant to the Court's Order of August 16, 2013 each party simultaneously 7 submitted its detailed version of a proposed statement of decision ("PSOD") for the Court to 8 consider in rendering this opinion. And, on September 23, 2013 the greater part of the day was 9 devoted to closing arguments. Following argument the matter was submitted for decision. On 10 November 4, 2013 the Court issued an Order directing the parties to address issues pertaining 11 to the proposed plan of abatement with which the parties complied; the case then stood 12 resubmitted for decision as of November 26, 2013. 13 On December 16, 2013 the Court issued its Proposed Statement of Decision. On 14 December 31, 2013, consistent with the Rules of Court, all parties submitted objections to the 15 Court's proposed decision, which have been reviewed and considered.2 To the extent the Court 16 has not revised its decision as stated herein, all objections by the parties are OVERRULED. 17 The Court, having read and considered the oral and written evidence, having observed 18 the witnesses testifying in court, and having considered testimony introduced through 19 depositions, having considered the supporting and opposing memoranda of all parties, having 20 heard and considered the arguments of counsel, and good cause appearing therefore, makes the 21 following findings and conclusions: 22

I. THE PARTIES

23

24 A. Plaintiff and Cross-defendants

25 26 1 The People withdrew their requested jury demand and on February 3, 2012 the Court struck the jury demand 27 asserted by Defendants. Defendants did not seek appellate review of that order. 28 2 The objections were of varying lengths: The People (4 pages), ARCO (7 pages), ConAgra (24 pages), DuPont (9 pages), NL (18 pages), and Sherwin-Williams (111 pages). People v. Atlantic Richfield Company, et al. 1 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 Plaintiff is the People of the State of California (People), acting by and through the 2 County Counsels of Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, and 3 Ventura Counties and the City Attorneys of Oakland, San Diego, and San Francisco. The 4 People, for purposes of this action, are residents of the counties of Santa Clara, Alameda, Los 5 Angeles, Monterey, San Mateo, Solano, and Ventura Counties and the cities of Oakland, San 6 Diego, and San Francisco (collectively and referred to herein as "Jurisdictions"). Cross- 7 Defendant Counties of Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, and 8 Ventura are charter or general law counties organized and existing under the Constitution and 9 laws of the State of California. Cross-Defendant City and County of San Francisco is a charter 10 city and county organized and existing under the Constitution and laws of the State of 11 California. Cross-Defendant Cities of San Diego and Oakland are charter cities organized and 12 existing under the Constitution and laws of the State of California. In this decision the Plaintiff 13 14 is referred to as the People, the public entities, and the Jurisdictions. 15 Throughout this litigation, the public entities have been represented both by their 16 respective government counsel and by private counsel.3 17

B. Defendants

18 Defendants and Cross-Complainant Sherwin-Williams Company were among the 19 largest manufacturers and sellers of lead pigment and paint containing lead pigment in the 20 United States in the 20th century. (Fed. Trade Com. v. Nat. Lead Co. (1957) 352 U.S. 419, 21 22 23 24 25

  • 3 In County of Santa Clara v. Superior Court (2010) 50 Cal. 4th 35 the Supreme Court addressed the issue of whether

26

private counsel retained by the People were entitled to receive in the form of a public nuisance

27

fees and costs through contingent fee arrangements. The Supreme Court held those arrangements were permitted.

28 People v. Atlantic Richfield Company, et al. 2 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 424; P517 at 1-3, 9.)4 The predominant use of white lead pigment was for paint applications. 2 (Tr. 543:21-26.)5 3 Defendant Atlantic Richfield Company ("ARCO") is a Delaware corporation with its 4 principal place of business in Illinois. Defendant ConAgra Grocery Products ("ConAgra") is a 5 Delaware corporation with its principal place of business in Nevada. Defendant E.I. Du Pont de 6 Nemours and Company ("DuPont") is a Delaware corporation with its principal place of 7 business in Delaware. Defendant NL Industries ("NL"), formerly known as the National Lead 8 Company, is a New Jersey corporation with its principal place of business in Texas. Defendant 9 Sherwin-Williams Company ("SW") is an Ohio corporation with its principal place of business 10 in Ohio. SW is also a cross-complainant, seeking declaratory relief. 11 As described more fully below, the corporate histories of ARCO and ConAgra are of 12 some moment in this litigation. 13

14 C. ARCO, ConAgra, and successor liability

15 Both ARCO and ConAgra make the threshold argument that since they were the result 16 of prior mergers and acquisitions, and the alleged bad acts occurred years before the present 17 iteration of these companies, they cannot be liable for any wrongs of their predecessors. 18 The People sue ARCO as alleged successor to The Anaconda Company and certain of 19 its former subsidiaries. (¶ 9.) The evidence shows promotion by two of the subsidiaries: 20 Anaconda Lead Products Company ("ALPC"), and International Smelting & Refining 21 22 Company ("IS&R"). ALPC operated a lead pigment manufacturing plant in East Chicago, 23 Indiana from 1920 until 1936, when ALPC was dissolved. (Ex. 291_004.) IS&R was the sole 24 shareholder of ALPC at the time of its dissolution. ALPC's assets and properties were 25 4 Defendant E.I. Du Pont de Nemours and Company was not a party to the FTC proceeding. 26 5 As used in this decision, "Tr." refers to the trial transcript by page and line, "Dkt." Refers to the Court's 27 Complex Civil case-specific website, "P" refers to Plaintiffs' trial exhibits; Defendants' trial exhibits are similarly noted. "¶" refers to paragraphs in the operative complaint. The Court permitted the parties to introduce testimony 28 by way of depositions subject to objections which the Court ruled upon. The net testimony was admitted along with attendant exhibits. People v. Atlantic Richfield Company, et al. 3 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 distributed to IS&R upon ALPC's dissolution. IS&R became the owner of the East Chicago 2 plant at that time, and operated the plant from 1936 until 1946, when it sold the plant to an 3 unrelated entity and exited the lead pigment business. (Exs. 285, 291_004.) 4 When ALPC, and later IS&R, operated the East Chicago plant, the plant produced dry 5 white lead carbonate pigment for sale under the "Anaconda" brand name to manufacturers of 6 paint and to manufacturers of non-paint products such as ceramics. (Ex. 285.) Beginning in 7 1931, the plant also produced white lead-in-oil, which also was sold under the "Anaconda" 8 brand name. (Id.) Plaintiffs' evidence of promotions published by any alleged ARCO 9 predecessor before 1936 consists of promotions published by ALPC. 10 ARCO maintains it has not succeeded to the liability, if any, that ALPC would have for 11 those promotions if it still existed. ARCO contends the shareholders of a dissolved corporation 12 do not succeed to its liabilities as a result of the dissolution. Thus, ARCO argues, IS&R did 13 14 not succeed to the liabilities, if any, of ALPC. Although IS&R later merged with the 15 Anaconda Company, which in turn merged with ARCO, it is submitted those mergers do not 16 provide any basis for holding ARCO to be the successor to the liabilities of ALPC. 17 As for ConAgra, in 1962 W.P. Fuller & Co. merged with Hunt Foods and Industries 18 ("Hunt") (Ex. 1 to People's Request for Judicial Notice ("PRJNMA")); in 1968 Hunt, Canada 19 Dry and McCall consolidated to form Norton-Simon (Ex. 2 to PRJNMA); in 1993 Norton- 20 Simon merged with Beatrice U.S. Food Corp. to form the Beatrice Company (Ex. 3 to 21 PRJNMA); and later in 1993 Beatrice Company merged into Hunt-Wesson, Inc. (Ex. 4 to 22 PRJNMA); in 1999 Hunt-Wesson, Inc. changed its name to ConAgra Grocery Products 23 Company (Ex. 5 to PRJNMA). 24 ConAgra introduced evidence that in 1964, before Hunt merged with Canada Dry and 25 McCall to form Norton-Simon, Hunt transferred all assets and liabilities relating to the paint 26 business of W.P. Fuller & Co. to a separate and distinct subsidiary named W.P. Fuller Paint 27 Co. (Ex. 1447.001-009.) W.P. Fuller Paint Co. remained in business for several years after its 28 creation. (Id. at 11-23.) In 1967 W.P. Fuller Paint Co. sold the assets and liabilities of the People v. Atlantic Richfield Company, et al. 4 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 paint business to Fuller-O'Brien Corporation ("O'Brien"). Unlike Hunt, O'Brien was a paint 2 company and remained in the paint business years after its acquisition of W.P. Fuller Paint 3 Co.'s assets and liabilities. (Ex. 12 to Anderson Depo at pages 227, 592.) W.P. Fuller Paint 4 Co. changed its name to WPF, Inc. and dissolved in 1968. (Ex. 1447.011-023.) ConAgra 5 maintains that because any paint liabilities of Fuller were never passed to Norton-Simon, the 6 chain of potential successor liability was broken. And, ConAgra argues, because this is an 7 equitable action, the facts and law must be evaluated through the lens of equity and the 8 question is whether imposition of liability would not only be legally appropriate, but would be 9 fair and just under the circumstances.6 10 The People have addressed these arguments as follows: 11 "If one corporation has merged into another, the surviving corporation is subject to all 12 liabilities of the merged or now-defunct corporation." (Cal. Prac. Guide Pers. Inj. Ch. 2(II)-F, § 13 14 2:1681, citing Corp. Code, § 1107.) "Generally, the purchaser of a corporation's business or 15 assets does not become liable for the transferor's obligations simply by reason of the purchase. 16 But the rule is otherwise if the purchaser assumes the corporation's liabilities as part of the 17 purchase price." (Cal. Prac. Guide Pers. Inj. Ch. 2(II)-F, § 2:1682, citations omitted.) Absent a 18 true merger or express assumption following an asset sale, successor liability may be imposed 19 in the event of a de facto merger, whereby a corporate acquisition in the form of an asset 20 purchase achieves the same results as a merger. (Marks v. Minnesota Mining & Mfg. Co. 21 (1986) 187 Cal.App.3d 1429, 1435.) Successor liability may also be imposed pursuant to the 22 mere continuation doctrine, where the purchaser acquires the seller's assets for inadequate 23 consideration or one or more persons were officers, directors or stockholders of both 24 corporations. (Ray v. Alad (1977) 19 Cal.3d 22, 29.) "Notwithstanding the absence of a true 25 merger, a 'de facto' merger or an express assumption, an assumption of liability may be 26 implied in law where it is both 'fair' to do so and necessary to prevent injustice." (Cal. Prac. 27 28 6 ConAgra is occasionally referred to in this decision as Fuller for historical context. People v. Atlantic Richfield Company, et al. 5 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 Guide Pers. Inj. Ch. 2(II)-F, § 2:1682, citing Alad, supra, 19 Cal.3d 22, and other cases.)7 2

D. Decision on successor liability of ARCO and ConAgra

3 4 The Court finds ARCO succeeded to the liabilities of Anaconda and IS&R pursuant to 5 corporate mergers and/or express assumption of liabilities and that IS&R's liabilities included 6 that of its agent, ASC. IS&R's liabilities included those of ALPC and ASC, which IS&R 7 succeeded to under the de facto merger and/or mere continuation doctrines. And. by 8 succeeding to the liabilities of ALPC, IS&R also succeeded to the liabilities of ALPC's agent, 9 ASC, pursuant to agency principles. All of these entities are referred to jointly herein as 10 "ARCO." Similarly, the Court finds ConAgra succeeded to Fuller's liabilities as a result of a 11 series of corporate mergers and/or the express assumption of liabilities. (¶¶ 8-12.) 12

The Court finds it is fair and appropriate in this case to so hold and necessary to

13

prevent an injustice. Therefore, ARCO and ConAgra do not avoid liability on this

14

ground.

15 16

II. PRE-TRIAL PROCEDURAL HISTORY AND RELEVANT AUTHORITIES

17 The public entities' claims against defendants originally included causes of action for 18 fraud, strict liability, negligence, unfair business practices, and public nuisance. County of 19 Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 300 (hereinafter cited as 20 "Appeals Decision") The Superior Court (Judge Jack Komar) granted defendants' motion for 21 summary judgment on all causes of action. The Court of Appeal reversed the Superior Court's 22 judgment of dismissal and ordered the lower court to reinstate the public-nuisance, negligence, 23 strict liability, and fraud causes of action. (Id. at p. 333.) 24 25 26 7 In response ARCO and ConAgra argue Ray offers limited guidance because Ray was a products liability case, not an equitable action relating to an alleged public nuisance. In products liability cases, successor liability is imposed 27 for several policy reasons such as the ability of successor entities to spread the risk of liability among current purchasers of the product line and the fact that the goodwill of the predecessor is typically enjoyed by the 28 successor. Id. at 25. The Court holds the latter policy reason to be persuasive. People v. Atlantic Richfield Company, et al. 6 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 Thereafter, the public entities filed a fourth amended complaint ("FAC") that alleged a 2 single cause of action for public nuisance, and sought only abatement; that is the claim at issue 3 in this decision. 4 The relevant statutory law provides: 5 "Anything which is injurious to health ... or is indecent or offensive to the senses, or an 6 obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life 7 or property ... is a nuisance." Civ. Code, § 3479 "A public nuisance is one which affects at the same time an entire community or 8 neighborhood, or any considerable number of persons, although the extent of the annoyance or 9 damage inflicted upon individuals may be unequal." Civ. Code, § 3480 10 Abatement, pursuant to Civ. Code, § 3491 is the result sought in this case. 11 A civil action may be brought in the name of the people of the State of California to 12 abate a public nuisance. Code Civ. Proc., § 731; Gov. Code, § 26528 13 "[P]ublic nuisances are offenses against, or interferences with, the exercise of rights 14 common to the public." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103) "Of 15 course, not every interference with collective social interests constitutes a public nuisance. To 16 qualify, and thus be enjoinable [or abatable], the interference must be both substantial and 17 unreasonable." Acuna at 1105. It is substantial if it causes significant harm and unreasonable if 18 its social utility is outweighed by the gravity of the harm inflicted. Id. 19 When hearing this case on pleading issues the Appeals Decision held Santa Clara, San 20 Francisco, and Oakland brought a civil action in the name of the People seeking to abate a 21 public nuisance. The public entities alleged that lead causes grave harm, is injurious to health, 22 and interferes with the comfortable enjoyment of life and property. The Court of Appeal found 23 the complaint was adequate to allege the existence of a public nuisance for which these 24 entities, acting as the People, could seek abatement. Subsequently, the Supreme Court declined 25 to review the Appeals Decision.8 Thus, the following language of the Appeals Decision is 26 controlling: 27 28 8 Rehearing denied by County of Santa Clara v. Atlantic Richfield Company, 2006 Cal.App. LEXIS 438 (Cal.App. 6th Dist., Mar. 24, 2006) Time for Granting or Denying Review Extended County of Santa Clara v. Atlantic People v. Atlantic Richfield Company, et al. 7 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 Here, the representative cause of action is a public nuisance action brought on behalf of the People seeking abatement. Santa Clara, SF, and Oakland are not seeking damages for 2 injury to their property or the cost of remediating their property. Liability is not based merely 3 on production of a product or failure to warn. Instead, liability is premised on defendants' promotion of lead paint for interior use with knowledge of the hazard that such use would 4 create. This conduct is distinct from and far more egregious than simply producing a defective product or failing to warn of a defective product; indeed, it is quite similar to instructing the 5 purchaser to use the product in a hazardous manner, which Modesto [City of Modesto 6 Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28] found could create nuisance liability. (emphasis in original) Id. at 309 7 8 *** 9 Because this type of nuisance action does not seek damages but rather abatement, a plaintiff may obtain relief before the hazard causes any physical injury or physical damage to 10 property. A public nuisance cause of action is not premised on a defect in a product or a failure to warn but on affirmative conduct that assisted in the creation of a hazardous condition. Here, 11 the alleged basis for defendants' liability for the public nuisance created by lead paint is their affirmative promotion of lead paint for interior use, not their mere manufacture and distribution 12 of lead paint or their failure to warn of its hazards. Id. at 309-310 13

***

14 [L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls 15 the property, nor on whether he is in a position to abate the nuisance; the critical question is 16 whether the defendant created or assisted in the creation of the nuisance. (emphasis supplied) Id. at 306, quoting Modesto at 38 17

The People sought to prove that defendants assisted in the creation of this nuisance by

18 concealing the dangers of lead, mounting a campaign against its regulation, and promoting lead 19 paint for interior use. The People further claimed defendants did so despite their knowledge for 20 nearly a century that such a use of lead paint was hazardous. Had defendants not done so, it is 21 asserted, lead paint would not have been incorporated into the interiors of such a large number 22 of structures and would not have created the public health hazard that the People contend now 23 exists. 24 As noted by the Court of Appeal: 25 A public nuisance cause of action is not premised on a defect in a product or a failure to warn but on affirmative conduct that assisted in the creation of a hazardous condition. Here, the 26 alleged basis for defendants' liability for the public nuisance created by lead paint is their 27 28 Richfield Company, 2006 Cal. LEXIS 7476 (Cal., May 22, 2006) Review denied by County of Santa Clara v. Atlantic Richfield Company, 2006 Cal. LEXIS 7622 (Cal., June 21, 2006) People v. Atlantic Richfield Company, et al. 8 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 affirmative promotion9 of lead paint for interior use, not their mere manufacture and distribution of lead paint or their failure to warn of its hazards. Appeals Decision at 309-310 2 3 While this Court may take judicial notice of decisions from other jurisdictions that 4 pertain to lead paint litigation (e.g., Rhode Island, Wisconsin), those cases are not controlling 5 and are of marginal value because of the varied legal standards involved. 6

III. TRIAL

7 Trial to the Court of the sole remaining cause of action – public nuisance – began on 8 July 15, 2013 after years of intense discovery and motion practice.10 Over the course of 23 trial 9 days the parties introduced over 450 exhibits into evidence. At the close of live testimony, the 10 parties – as permitted by the Court — submitted 25 depositions with attendant exhibits, portions 11 of which were admitted into evidence after the Court ruled on objections. During the trial the 12 Court ruled on over 30 written evidentiary objections and motions.11 13 14 15 9 The Court adopts the standard definition of "promotion": "the act of furthering the growth or development of something; especially: the furtherance of the acceptance and sale of merchandise through advertising, publicity, or 16 discounting" Merriam-Webster Dictionary, 2013 17 10 Retired United States District Judge Eugene M. Lynch served as appointed discovery referee and held over 60 hearings and conferences. SW objects the Court did not allow sufficient time for discovery; that objection is 18 OVERRULED. 19 11 The Court initially allocated 30 hours to each side (Plaintiff on the one hand, Defendants the other) for the presentation of live testimony (opening statements, motions, closing arguments, and procedural sessions were not 20 included). On its own motion the Court expanded the time to 40 hours per side after reviewing the parties' more thoughtful witness time estimates. Defendants objected to this allocation and asserted that the imposition of time 21 limits for testimony violated due process. The Court disagrees. Both California and federal courts have regularly upheld time limitations on testimony. (Hernandez v. Kieferle (2011) 200 Cal.App.4th 419, 438; see also General 22 Signal Corp. v. MCI Telecommunications Corp. (9th Cir. 1995) 66 F.3d 1500, 1508, citing Monotype Corp. v. Intl. Typeface Corp. (9th Cir.1994) 43 F.3d 443, 451 [finding the court's time limit reasonable, even though it 23 provided significantly less time than the parties estimated would be required]. Imposing time limits is well within this Court's discretion (see, e.g., K.C. Multimedia, Inc. v. Bank of Am. Tech. and Operations, Inc. (2009) 171 24 Cal.App.4th 939, 951), and permitted by §352 of the Evidence Code. Each Defendant had time to present its case and, in addition, the Court provided Defendants with extra time after they had exceeded their allotment. (Tr. 25 3146:20-3147:2; 3239:24-3240:2.) Defendants were able to conduct examinations of their own expert witnesses as well as lengthy cross examinations of the People's witnesses (often in excess of the direct examination times), to 26 present additional testimony through depositions, and to enter hundreds of documents into evidence. Each Defendant had ample opportunity to present the evidence in support of its case through able counsel who brought 27 extensive experience in "lead paint" litigation to this case. Finally, after reviewing Defendants' offers of proof regarding testimony that might have been presented with additional time [Dkt. Nos. 3459, 3460, 3461, 3462, 28 3463, 3464, 3465, 3466, 3467, 3468 & 3473], it is noteworthy and convincing that the Defendants did not claim surprise as to any of the People's testimony at trial. The Court does not find that Defendants' proffered testimony would have changed its findings or conclusions. None of the parties sought appellate relief as to these limits. People v. Atlantic Richfield Company, et al. 9 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619

1 The trial concerned the following issues:

2 ? Is white lead carbonate and the paint in which it is a key ingredient harmful, 3 particularly to children? 4 ? If so, what harms does it cause? 5 ? Is there a present danger that needs to be addressed by the Court? 6 ? Did the Defendants promote and sell this product in the Jurisdictions? 7 ? If so, during what period and to what extent? 8 ? Did the defendants sell the product with actual or constructive knowledge (if 9 constructive knowledge was deemed sufficient) that it was harmful? 10 ? To what extent are higher blood lead levels due to non-paint sources, such as deposits 11 from gasoline? Or candies? Or water? And does the existence of these other sources 12 supplant any liability of these defendants? 13 ? Does intact lead paint pose a hazard? And if so, to what extent? 14 ? Does the undisputed reduction in tested blood lead levels over time mean the issues in 15 this case are resolved? 16 ? To what extent do existing programs at all government levels deal with the problem? 17 ? Is the issue with local governments a lack of resources, or a lack of will by those 18 entities? 19 ? Is the proposed abatement solution unrealistic as to cost, time, or manageability? 20 ? Is the proposed abatement solution itself unlikely to be successful in the long run? 21 ? Do other defenses, such as those raising constitutional issues, preclude liability? 22

IV. THRESHOLD FINDINGS

23 24 Two threshold issues are disposed of as follows: 25 First, the question of "pigment" versus "paint." SW in particular strenuously argued 26 that lead pigment must be differentiated from lead paint. It is undisputed that certain companies 27 made pigment and sold it as a component for paint. Therefore, and in contrast, the argument is 28 People v. Atlantic Richfield Company, et al. 10 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 since paint was produced by many companies, it is wrong to hold these five defendants liable 2 for paint manufactured and installed by others. The Court adopts a different position: that lead 3 pigment is, by itself, not applied to walls and woodwork but is the dangerous component of 4 paint. The Appeals Decision speaks of "lead paint" and, as it must, the Court is bound by that 5 definition of the product at issue. 6

Second, the Court has considered the issue of exterior versus interior paint. Again,

7 the Appeals Decision provides direction: "Here, the alleged basis for defendants' liability for 8 the public nuisance created by lead paint is their affirmative promotion of lead paint for 9 interior use, not their mere manufacture and distribution of lead paint or their failure to warn 10 of its hazards." (emphasis supplied) Id. at 310 Of equal significance, and beyond the cited 11 language, the Court is convinced the People have not sustained their burden of proof regarding 12 exterior paint and the element of causation. This is so because there are multiple causes of lead 13 found on the outside of houses, including the residue from leaded gasoline and that tracked 14 from other locations, that make it improper for the court to connect these defendants to outside 15 hazards. 16

Therefore, based on both the language of the Appeals Decision and,

17

independently, the lack of persuasive evidence, this decision is based solely on the issue of

18

lead paint as produced, promoted, sold, and used for interior use.

19

20 V. PLAINTIFF'S LEGAL AND EVIDENTIARY POSITIONS

21 Plaintiff contends as follows:12 22

23 A. Legal standards

24 In a public nuisance case seeking only abatement, "the burden of the People [is] to 25 prove the case only by a preponderance of the evidence." (People v. Frangadakis (1960) 184 26 27 28 12 In this decision the Court draws heavily upon the detailed PSODs supplied by the parties. People v. Atlantic Richfield Company, et al. 11 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 Cal.App.2d 540, 549-50; see also Evid. Code, § 115 ["Except as otherwise provided by law, 2 the burden of proof requires proof by a preponderance of the evidence"].) 3 Among the rights common to the public is the right to public health. This includes the 4 right to be free from the harmful effects of lead in paint. Lead in homes in the Jurisdictions is 5 injurious to health and interferes with the comfortable enjoyment of life and property. (¶¶ 31- 6 36, 82-95, 100-103.), is a nuisance that affects entire communities and a considerable number 7 of persons residing in those Jurisdictions (FAC ¶¶ 37-41, 46-72.), and causes and is likely to 8 cause significant harm to children, families, and the community at large. (FAC ¶¶ 31-72, 82- 9 95, 100-103, 218-221, 228-231.) 10

11 B. Defendants' Knowledge

12 The Defendants, as delineated and limited further in this Decision, are liable for public 13 nuisance if it promoted "lead paint for . . . use with knowledge of the hazard that such use 14 would create." Appeals Decision at 317. Each Defendant's knowledge of that hazard may be 15 actual or constructive. (See Selma Pressure Treating Co. v. Osmose Wood Preserving Co. of 16 America, Inc. (1990) 221 Cal.App.3d 1601, 1620 [holding that defendant may be liable for 17 public nuisance if it "knew or should have known" that its disposal practices might threaten the 18 water supply]; Ileto v. Glock Inc. (9th Cir.) 349 F.3d 1191, 1214-15 [holding, under California 19 nuisance law, that defendants may be liable if they knew or should have known of hazard 20 caused by their promotion, distribution, and sale of firearms].) 21 22 This is consistent with general tort law principles – which require only proof of 23 constructive knowledge – as well as nuisance law. (See John B. v. Superior Court (2006) 38 24 Cal.4th 1177, 1190 [reviewing constructive knowledge requirement within general negligence 25 principles]; Leslie Salt Co. v. San Francisco Bay Conservation & Development Com. (1984) 26 153 Cal.App.3d 605 [discussing property owners' liability for nuisance where the owners knew 27 or should have known of the condition that constitutes the nuisance].) Each Defendant's actual 28 or constructive knowledge may be proven by both direct and circumstantial evidence. "Both People v. Atlantic Richfield Company, et al. 12 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 direct and circumstantial evidence are admissible in proof of a disputed fact," and "[n]either is 2 entitled to any greater weight than the other." (3 Witkin, Cal. Evid. (4th ed.) § 846.) "A verdict 3 or finding may be founded on circumstantial evidence alone, even on circumstantial evidence 4 that is opposed by direct and positive testimony." (Id. at § 856.) 5 Courts have held in a variety of tort cases that actual knowledge may be proven by 6 circumstantial evidence. (See, e.g., Axis Surplus Ins. Co. v. Reinoso (2012) 208 Cal.App.4th 7 181, 190, [circumstantial evidence used to prove knowledge of dangerous property conditions]; 8 Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 723 9 [circumstantial evidence used to prove knowledge for purposes of notice requirement for 10 sexual abuse case]; Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163-64 [circumstantial 11 evidence used to prove landlord's knowledge of animal's dangerous propensities].) 12 As recited in Civil Jury Instruction 202: 13 14 Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone's opinion. 15 Direct evidence can prove a fact by itself. For example, if a witness testifies she saw a jet plane 16 flying across the sky, that testimony is direct evidence that a plane flew across the sky. Some evidence proves a fact indirectly. For example, a witness testifies that he saw only the white 17 trail that jet planes often leave. This indirect evidence is sometimes referred to as 18 "circumstantial evidence." In either instance, the witness's testimony is evidence that a jet plane flew across the sky. As far as the law is concerned, it makes no difference whether evidence is 19 direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves. 20 21 Even if the People have not proven that each Defendant had actual knowledge of the 22 hazard that was created by the use of lead paint on homes in the Jurisdictions, the People 23 contend they have proven that the Defendants had constructive knowledge of that hazard. 24 (FAC ¶¶73-136.) The Court agrees with the People on this point. 25

The Court finds this constructive knowledge took a variety of forms, including:

26 Defendants' Internal publications (SW and NL) 27 Litigation (the Pigeon case described below) (ConAgra) 28 Internal manuals (SW) People v. Atlantic Richfield Company, et al. 13 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 Marketing contrasting newer, safe products to lead paint (DuPont) 2 Information and industry positions via trade associations (LIA and NVLP) of which 3 defendants were members 4 Specific testimonial references include: 5 Bartlett Article (1878) at p. 34 Tr. 1168 6 Sinkler Article (1894) at p. 42 Tr. 1174 7 Newmark (1895) Tr. 1174 8 Gibson (1904) Ex. P28 Tr. 1184-85 (found in Index MediProperties) 9 Osher (1907) Tr. 1186 10 Blackfan (1917) Ex. P22 Tr. 1190 11 McKhann (1933) Ex. P23 Tr. 1194 12 Medical Journal of Australia (1933) Ex. P30 Tr. 1197-98 13 14 Aub (1926) Ex. P31 Tr. 1203 15 Porritt (1931) Ex. P29 Tr. 1206 16 New York Journal of Medicine (1935) Ex. P 55 Tr. 1208 17 Minot (1938) Ex. P24 18 UK Ministry of Health (1938) Ex. P69 Tr. 1213 19 Journal of Diseases of Children (1943) Ex. P21 Tr. 1215 20 Despite this actual and constructive knowledge, Defendants promoted lead pigment 21 and/or lead paint for home use. (FAC ¶¶ 73-217.) (See Jones v. Vilsack (8th Cir. 2001) 272 22 F.3d 1030, 1035 ["promotional activities take many forms" including retail displays, coupons, 23 and samples].) Defendants' assertion that they were not aware of the effects of low-level lead 24 exposure until long after they stopped producing and promoting lead paint is of no moment. 25 The Defendants knew or should reasonably have known that exposure to lead at high levels, 26 including exposure to lead paint, was fatal or at least detrimental to children's health. That 27 knowledge alone should have caused the Defendants to cease their promotion and sale of lead 28 pigment and/or lead paint for home use. Instead, after becoming aware of the hazards People v. Atlantic Richfield Company, et al. 14 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 associated with lead paint, they continued to sell it. (FAC ¶¶ 73-221.) Defendants' argument 2 that they should not be held liable because they did not understand the full panoply of harms 3 caused by lead poisoning is simply not persuasive and contrary to law. (Crowe v. McBride 4 (1944) 25 Cal.2d 318, 322 ["As said in the Restatement, Torts, section 435: 'If the actor's 5 conduct is a substantial factor in bringing about harm to another, the fact that the actor neither 6 foresaw nor should have foreseen the extent of the harm or the manner in which it occurred 7 does not prevent him from being liable.'"], (emphasis added.) 8 And, as the Court of Appeals held: "The fact that the pre-1978 manufacture and 9 distribution of lead paint was 'in accordance with all existing statutes does not immunize it 10 from subsequent abatement as a public nuisance.'" Appeals Decision at 310. 11

12 C. Harm from Lead is Well-Documented

13 According to the Centers for Disease Control and Prevention ("CDC"), 14 15 Lead is a poison that affects virtually every system in the body. It is particularly harmful to the developing brain and nervous system of fetuses and young 16 children. . . . The risks of lead exposure are not based on theoretical calculations. They are well known from studies of children themselves and are not extrapolated 17 from data on laboratory animals or high-dose occupational exposures. 18 (CDC, Preventing Lead Poisoning in Young Children (1991) Ex. 7. Children are particularly 19 susceptible to lead poisoning because they absorb lead much more readily than adults, and 20 because their brains and nervous systems are still developing. 21 In 1978, the U.S. Consumer Product Safety Commission banned the use of lead-based 22 paint in order to reduce the risk of lead poisoning in children. Eight years later the California 23 Legislature declared childhood lead exposure the most significant childhood environmental 24 health problem in the state, and enacted statutes and regulations aimed at reducing human 25 exposure to lead. (See, e.g., Cal. Health & Saf. Code § 124125.) Despite this federal and 26 statewide effort, California children continue to be harmed by lead-based paint each year, and 27 lead-based paint remains the leading cause of lead poisoning in children who live in older 28 housing. People v. Atlantic Richfield Company, et al. 15 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 On May 16, 2012, the CDC eliminated the blood lead level of concern that had been 2 used to define lead poisoning in recognition of the fact that "no safe blood lead level in 3 children has been identified." (See CDC Response to Advisory Committee on Childhood Lead 4 Poisoning Prevention Recommendations in "Low Level Lead Exposure Harms Children: A 5 Renewed Call of Primary Prevention," U.S. CDC (May 16, 2012) ("CDC Response").)13 6 Since antiquity, it has been well known that lead is highly toxic and causes severe 7 health consequences when ingested. (Tr. 2723:14-2725:1.) Infants and toddlers are most 8 vulnerable to lead poisoning because they absorb far more lead than adults and older children. 9 Because their brains and other organs are still rapidly developing, infants and toddlers also 10 sustain far greater damage when exposed to lead. (Tr. 109:20-110:20; 134:23-136:8.) When 11 ingested in large quantities, lead is fatal. High-level lead exposure can cause seizures and 12 coma, necessitating hospitalization, invasive medical procedures, and administration of drugs 13 14 with significant side effects. It can also cause brain swelling, kidney damage, anemia, 15 disintegration of blood cells, and severe abdominal complaints. Intermediate lead exposure is 16 associated with damage to hemoglobin, calcium and vitamin D metabolism, and nerve 17 conduction. (Tr. 350:11-351:10 [discussing P278_002], 354:10-355:24 [relying on P40], 18 1090:4-18, 1094:1-1095:15.) 19 Even relatively low levels of lead exposure have severe health consequences. Blood 20 lead levels (BLLs) between 5 and 10 ?g/dL are associated with adverse effects on 21 development, delayed puberty, decreased growth and hearing, as well as increased anti-social, 22 delinquent, and criminal behavior. (Tr. 350:11-351:10 [discussing P278_2], 356:3-23 [relying 23 on P35], 361:8-362:23 [discussing P48], 363:19-364:15 [relying on P278 at 6-7], 398:19- 24 401:15 [discussing P18], 954:25-956:3, 2796:225 [discussing P18 at 47]; P18 at 20, 21, 30, 45 25 & 47, P19 at 11 & 25, P20 at 2, P40 at 1, P45 at 18-19 & P48.) 26 27 13 Defendants asserted that Dr. Mary Jean Brown, Chief of the Healthy Homes/Lead Poisoning Prevention Branch of the CDC said on November 14, 2011 that the lead problem had been solved. This is incorrect, as pointed out in Ex. 28 1583.406 where Dr. Brown states "one of the things we're fighting, one of the myths we're fighting is that lead has been solved." People v. Atlantic Richfield Company, et al. 16 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

E-FILED: Jan 7, 2014 4:06 PM, Superior Court of CA, County of Santa Clara, Case #1-00-CV-788657 Filing #G-59619 1 Any level of lead exposure significantly lowers a child's Intelligence Quotient (IQ). 2 The decline in IQ is steepest at lower BLLs. Thus, even BLLs below 5 ?g/dL are associated 3 with decreased IQ and academic abilities, difficulty with problem solving, memory 4 impairment, attention-related behaviors such as ADHD, and anti-social behavior. (Tr. 350:11- 5 351:10 [discussing P 278 at 2]; 358:13-360:27 [relying on P38]; 388:26-389:14 [discussing 6 P278 at 11], 954:25-955:10, 966:1-8, 2316:18-2317:1; P18 at 20, 21, 30, 45 & 47, P19 at 11 & 7 25, P20_2, P45 at 18-19, P48, P54.) 8 Consequently, the drop in IQ of a lead-poisoned child substantially reduces his or her 9 likelihood of leading a happy, productive life. (Tr. 385:2-389:14; 397:22-398:18 [discussing 10 P54], 420:11-16 [same], 2320:22-2321:18; P54, P278A.) Such a drop in IQ lowers the 11 community's average IQ, increases the number of people considered mentally retarded, and 12 reduces the number of people considered gifted. Lead exposure has been associated with the 13 14 loss of 23 million IQ points among a cohort of American children. This IQ drop diminishes the 15 productivity and well-being of each affected community and society as a whole. (Tr. 385:2- 16 389:14; 397:22-398:18 [discussing P54], 420:11-16 [same], 2320:22-2321:18; P54, P278A.) 17 From 2007 to 2010, at least 50,000 children under six in the Jurisdictions had BLLs 18 above 4.5 µg/dL. In 2010 alone, more than 10,000 children living in the Jurisdictions had BLLs 19 above 4.5 µg/dL. (P223; P239; D1411.5.) These numbers, drawn from the RASSCLE database, 20 represent the minimum number of children in the Jurisdictions who were lead poisoned. (Tr. 21 3261:18-25.) 22 The Court finds that children with elevated BLLS identified in RASSCLE represent "the 23 tip of the iceberg" and understates the prevalence of childhood lead exposure in the Jurisdictions. 24 This is because RASSCLE does not include children who are at greatest risk for lead exposure, 25 such as children who do not have insurance or regular access to health care. Even so, the number 26 of children with elevated BLLS in the Jurisdictions in 2010 identified by RASSCLE is 27 substantial. That number is far greater than the number of persons who contract whopping cough 28 (pertussis), tuberculosis, hanta virus, and other communicable diseases each year. If the same People v. Atlantic Richfield Company, et al. 17 Superior Court of California, County of Santa Clara Case No. 1-00-CV-788657 Statement of Decision

1 number of children contracted one of those diseases in a year, public health officials would call it 2 an epidemic. (Tr. 1373:5-12, 3247:27-3248:5, 3259:23-3261:17, 3261:26-3262:7.) 3 Moreover, lead paint "disproportionally impacts low income and minority children. (Tr. 4 905:20-906:9, 986:21-987:6, 999:12-1000:23, 1365:19-23, 1370:18-1371:10, 2309:21-2310:8., 5 905:20-906:9, 986:21-987:18, 999:12-1000:23, 1365:19-23, 1370:18-1371:10, 2309:21-2310:8; 6 P45.) African American children and, to a lesser extent, Latino children have much higher 7 average BLLs than white children. (Tr. 986:21-987:18; 2583:5-9, P45.) 8 These consequences are not recent discoveries. Over 100 years ago, in 1900, SW's 9 internal publication stated, "It is also familiarly known that white lead is a deadly cumulative 10 poison, while zinc white is innocuous. It is true, therefore, that any paint is poisonous in 11 proportion to the percentage of lead contained in it." Ex. 155 12

13 D. The Inevitable Deterioration of Lead Paint is Not Disputed

14 15 Lead paint inevitably deteriorates, leaving behind lead-contaminated chips, flakes, and 16 dust. Dust from deteriorating lead paint deposits on floors, windowsills, and other interior 17 surfaces. (Tr. 190:28-191:27, 1262:16-28; 3092:21-3093:8, 3130:22-28; 3131:13-3133:4; P10, 18 table 5.7.) Deterioration is dramatically accelerated when lead paint is on high friction 19 surfaces, such as windowsills and doors. (Tr. 175:16-22, 160:13-24, 992:21-993:1, 3129:7-14.) 20 Deterioration of lead paint on the exterior of homes contaminates surrounding soil. Lead 21 contaminated soil is often tracked into homes. (Tr. 176:14-27, 982:23-983:10 [relying on P16, 22 P28_16], 986:5-13, 2053:2-7.) Lead contamination in soil and dust in older homes is almost 23 always due to lead in paint rather than other environmental contaminates. (Tr. 192:23-194:22 24 [relying on P10 at 4-5, Table 6.3, P11 at 1-6], P277_18, 985:4-27 [relying on P16, P280_17], 25 1500:16-24, 1501:6-1502:18; P45_40.) 26

27 E. Young Children are at Greatest Risk

28

1 As part of normal development, young children engage in hand-to-mouth behavior, and 2 often ingest dust, soil, and other particles. Young children also regularly chew on accessible 3 surfaces and objects, including windowsills and other interior woodwork. (Tr.134:23-136:8, 4 161:1-16, 1374:22-28, 1461:3-14, 1462:16-28.) Through these normal developmental 5 behaviors, children in homes containing lead paint ingest that paint in the form of dust, paint 6 chips or flakes. (Tr. 159:10-160:12.) A chip of lead paint that is approximately the size of a 7 period at the end of a sentence is sufficient to cause a BLL of 20 micrograms per deciliter if 8 ingested by a young child. (Tr. 156:6-19.) One gram of lead, the amount of material contained 9 in a standard packet of sugar, if spread over 100 rooms, each measuring 10 feet by 10 feet, 10 would be sufficient to create a lead dust hazard at two times the level recommended by the 11 EPA. (Tr. 2201:21-2203:28.) Lead paint on high friction surfaces presents an immediate 12 hazard, even if it is presently intact, because normal use causes the paint to degrade, exposing 13 14 young children to lead dust. (Tr. 160:13-161:16, 175:1-22, 178:20-25, 2053:2-7.) When intact 15 lead paint is on surfaces such as windowsills and railings that can be mouthed or chewed by a 16 child, the paint is a hazard regardless of whether it is intact. (Tr. 160:13-161:16, 1090:23- 17 1092:21.) Furthermore, lead paint that is currently intact poses a substantial risk of future harm 18 because it will inevitably degrade and be disturbed by normal residential activities, such as 19 renovations. (Tr. 1417:7-27, 3133:9-28.) 20

F. Experts, Federal Agencies, Physician Associations, and the Public Entities

21 Agree That Lead Paint Is the Primary Source of Lead Exposure for Young 22 Children Living In Pre-1978 Housing 23 24 Leading experts in the field of lead poisoning are virtually unanimous in concluding 25 that lead paint is the primary cause of lead poisoning in young children. (Tr. 140:13-141:19, 26 344:17-22, 2120:15-23.) The federal agencies tasked with identifying the causes of lead 27 poisoning agree that lead paint is the primary source of childhood lead exposure. For example, 28 in 2012, the CDC's Advisory Committee on Childhood Lead Poisoning Prevention reported

1 that "lead-based paint hazards, including deteriorated paint, and lead contaminated dust and 2 soil still remain by far the largest contributors to childhood lead exposure on a population 3 basis. " (Tr. 110:21-111:4, 130:18-132:18, 137:11-20; P9_14; P11 at 1-6; P45_40.) The 4 American Academy of Pediatrics recognizes that "[t]he source of most lead poisoning in 5 children now is dust and chips from deteriorating lead paint on interior surfaces." (Tr. 132:6- 6 17; P66_1037.) Lead paint accounts for at least 70 percent of childhood lead poisoning and is 7 the dominant cause of lead poisoning in children living in older homes. (Tr. 983:12-988:17, 8 1502:6-25.) Nationally, children living in pre-1978 homes are 13 times more likely to have an 9 elevated BLL than those living in post-1978 homes. (Tr. 961:6-17.) In California, 80 to 90 10 percent of cases of childhood lead poisoning involve children living in pre-1980 homes. (Tr. 11 1364:18-1365:5.) And, consistent with national and statewide data, lead paint is the primary 12 source of lead poisoning for children in the Jurisdictions. (Tr. 183:7-15, 905:15-906:9, 13 14 1097:19-1098:5, 1404:29-1405:4, 1413:6-28, 2043:10-25, 2057:19-2058:7, 2229:5-10, 2239:7- 15 2240:9, 2288:4-17, 2320:22-2321:18, 3263:9-3264:7.) 16

G. Lead Paint is Prevalent in the Jurisdictions

17 In 1978, the U.S. Consumer Product Safety Commission prohibited the use of lead- 18 based paint in homes. (16 Code Fed. Regs § 1303.4.) The 2010 census data shows that over 4.7 19 million homes in the Jurisdictions were built before the 1978 ban. (P261; see also P283_014.) 20 The chart below depicts the estimated number of pre-1950 and pre-1978 homes in each of the 21

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    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions