Lead Paint Nuisance Issue


“The ultimate issue is who bears the costs of injuries caused by products: the manufacturers or the injured?”  (When it comes to the Lead Paint Nuisance Issue, I am not sure I understand this one as well as the other topics.  It seems the appellate court decision was just released (reducing the damages award), which somewhat contravenes the majority of the suppositions in the link/article to the topic that I was initially provided.)


FACTS (brief, 6 sentences):

Antonio Dias, lead counsel for Sherwin-Williams in the California litigation, told Bloomberg Law that “all other states that have considered the issue” have similarly rejected lead paint nuisance claims, including Ohio, Mississippi, New Jersey, Illinois, New York, and Wisconsin.  “The plaintiffs are trying to hold companies liable for something unknown and unknowable at the time,” he said.


The case is People v. ConAgra Grocery Products Co., H040880, California Court of Appeal, Sixth District (San Jose). The lower-court case is California v. Atlantic Richfield Co., 1-00-cv-788657, California Superior Court, County of Santa Clara (San Jose).



ISSUES (Summarize both sides argument, both perspectives. You can use bullet points):

(See attached Order/findings from the Court.)


The paint manufacturers “continue to disagree with the trial court and now the appellate court view on the applicability of public nuisance in these circumstances,” Tony F. Dias, a lawyer for Sherwin-Williams, said in an interview. The companies will appeal the ruling to the California Supreme court and if necessary, the U.S. Supreme Court, he said.



LAW (with references, no need for blue book citations. This is the most important part, make sure the attorneys can answer any questions from callers on the topic. You can use bullet points):

Public Nuisance: An act by a defendant that interferes with the public’s use or enjoyment of public property.


If the California court upholds the judgment, it would be the first state appeals court to find manufacturers liable under nuisance law for creating a lead paint hazard.

The judgment, if affirmed, would be the first major lead paint public nuisance victory, but would also “register beyond that context,” Professor Craig Johnston at Lewis & Clark Law School in Portland, Ore., said.

Santa Clara County and the nine other California cities and counties that sued the manufacturers say upholding the 2014 trial court order to pay $1.15 billion to fund lead abatement is vital to protecting children in the state (People v. Atlantic Richfield Co., Cal. Ct. App., H040880, oral argument 8/24/17).  But counsel for Santa Clara County also says the predictions of a public nuisance explosion are misplaced.



DETAILED FACTS (tell the story):


“Tuesday’s ruling by a three-judge panel rejected a trial court’s calculation of the 2014 judgment against the paint makers, which may lead to a substantial reduction. But a law professor and lawyers for the cities and counties that sued the companies said the ruling may bolster other kinds of nuisance cases brought by state and local governments, such as those seeking to hold drug companies responsible for the U.S. opioid epidemic and suits targeting oil companies for climate-change effects including rising sea levels.

The local governments that sued the paint makers, including Los Angeles County and the cities of San Diego and San Francisco, broke the companies’ streak of victories in similar suits in seven other states. While the companies argued on appeal that a San Jose judge’s ruling against them three years ago was an outlier that set a bad precedent for public policy, Tuesday’s ruling largely upheld the judge’s legal analysis. …

The appeals court ruled that because the manufacturers stopped promoting lead paint in 1951, the companies aren’t responsible for abating damages in homes built after that date. That will cut the award by $500 million or more, said Joseph Cotchett, a lawyer for the plaintiffs.

But the ruling upholds most of the findings of the lower court and supports the idea that companies can be held accountable for promoting products that they know can cause problems, said Sean Hecht, a professor at the University of California at Los Angeles law school.”

Lead Paint Nuisance Ruling Stands as $1 Billion Award Falls (1)

BN — Nov 14 2017 21:44:29  (link repeated below)



OTHER FACTS (interesting facts, related facts, trivia, etc.):


The Court did reduce the award of damages but allowed much of it to stand:


“Sherwin-Williams Co., NL Industries Inc. and ConAgra Grocery Products LLC persuaded a California appeals court to knock down a billion-dollar judgment over the contamination of millions of homes in California with lead paint, but the ruling may also give government lawyers a stronger hand pursuing public-nuisance cases.”

Lead Paint Nuisance Ruling Stands as $1 Billion Award Falls (1)

BN — Nov 14 2017 21:44:29.  https://www.bloomberglaw.com/product/blaw/document/OZFUA56VDKHS?bc=W1siU2VhcmNoIFJlc3VsdHMiLCIvcHJvZHVjdC9ibGF3L3NlYXJjaC9yZXN1bHRzL2MwMWU1N2U4ZjIxYjJhOGM3ZDk4ODljOGJjMjAwNzI4Il1d–b12842aad296d3cc058fe6dbb9547222030042c4&bestStory=true&headlineOnly=false&highlight=lead+paint+nuisance


“This ruling allows the plaintiffs in those cases to feel confident that the courts are going to take their case more seriously,” the professor said. “[N]uisance theory will “absolutely” be applied to other industries, including drug makers. “You wait and see what’s coming with nuisance.” “You put dangerous drugs willy-nilly in the streets, you are creating a nuisance to the public.”

Lead Paint Nuisance Ruling Stands as $1 Billion Award Falls (1)

BN — Nov 14 2017 21:44:29  https://www.bloomberglaw.com/product/blaw/document/OZFUA56VDKHS?bc=W1siU2VhcmNoIFJlc3VsdHMiLCIvcHJvZHVjdC9ibGF3L3NlYXJjaC9yZXN1bHRzL2MwMWU1N2U4ZjIxYjJhOGM3ZDk4ODljOGJjMjAwNzI4Il1d–b12842aad296d3cc058fe6dbb9547222030042c4&bestStory=true&headlineOnly=false&highlight=lead+paint+nuisance



From the article released prior to the ruling

Faulk said that regardless of how the California appeal court rules, the state’s top court will ultimately be asked to decide the validity of the judgment.

Professor Nancy White, chair of the Department of Finance and Law at Central Michigan University in Mount Pleasant, Mich., said that because of the enormity of the stakes involved, even California Supreme Court review might not end the matter.  “Whichever way the courts come down on the situation the legislature could come in later and fix it,” White told Bloomberg Law.

“The ultimate issue is who bears the costs of injuries caused by products: the manufacturers or the injured?” White said.  “If the defendants win then it will be business as usual: The cost of these unforeseen injuries will be borne by the injured. To some extent the cost will also be on the state to the extent tax dollars are spent on health care and remediation,” she said.  But if the plaintiffs win, “the California view on public nuisance could slowly seep into the case law of other liberal states,” White said.

What was the appropriate standard of proof was much of the argument for the initial ruling on appeal.  “The fact is that on the question of what is pertinent to this case, we’re looking at what was known and knowable here,” Defense attorney Scott said. The “prevailing best and scientific knowledge at the time” didn’t recommend any restriction of lead paint in homes, Scott said, adding that the cities and counties case must focus on “what was the prevailing standard of medicine and science at the time.”  A lawyer for the cities and counties, told the judge he had met the “substantial and reasonable” standard of proof of lead poisoning to children required for the case to go forward.


Federal Standards for Lead (from PIRG article on lead in fidget spinner toys)

  • Paint or similar surface coatings on all children’s products are subject to a limit of

90 ppm of total lead. (Household paints are also subject to this rule.)

  • Exceptions to these standards include metal components of bicycles, which cannot

contain more than 300 ppm of lead. Components in electronic devices, some used

children’s products, inaccessible parts, and other items are exempt from the lead


Note that these limits do not meet the recommendations of the American Academy of

Pediatrics (AAP), which recommends that all products intended for use by children contain

no more than trace amounts of lead, defined as 40 ppm, the high end of typical lead

concentrations in uncontaminated soil.



ARTICLE LINKS (so we can print them out):

Opinion of the Court






Paint  Makers Win Reversal of $1.15 Bln




Lead Paint Nuisance Ruling Could Have Big Impact, Product Safety & Liability Reporter (BNA)




Manufacturers Argue Against $1 Billion for Lead Paint



Public Nuisance





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