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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 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
DecisionE-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 DecisionE-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
promotion
9 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 DecisionE-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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
