In the Santa Clara County, California lawsuit, ten cities and counties asked the court to declare that lead paint in and on privately owned residential buildings within their jurisdictions is a public nuisance that requires abatement. The trial court’s decision ordered three of the five defendants to pay $1.15 billion into an abatement fund to be managed by the State or its Childhood Lead Poisoning Prevention Branch. The decision is an aberration that is at odds with courts across the country, and the liable defendants have appealed.

The county or city attorneys in seven counties and three cities are plaintiffs in the California case: Santa Clara County, City and County of San Francisco, Alameda County, Los Angeles County, Monterey County, City of Oakland, City of San Diego, San Mateo County, Solano County and Ventura County.  Five former manufacturers were defendants: Atlantic Richfield Company; ConAgra Grocery Products Company; E.I du Pont de Nemours and Company; NL Industries, Inc.; and The Sherwin-Williams Company. The trial court found that Atlantic Richfield and DuPont were not liable.  Plaintiffs then dismissed Atlantic Richfield and DuPont after each agreed to withdraw its request for costs.

This is litigation by hindsight that has failed nationwide. Public nuisance cases filed in seven jurisdictions – Ohio, Rhode Island, Missouri, New Jersey, Illinois, New York and Wisconsin – have all been either rejected by courts or by a jury, or voluntarily dismissed. Suits against companies that long ago made white lead pigments used in residential paints have failed because the companies are not responsible for risks today resulting from others’ failure to maintain useful and legal products made long ago. Moreover, when they last made white lead pigment, the alleged current risks to children were not known or knowable. Lead-based paint was also specified and recommended then by federal and state agencies for use in public and private buildings. Lead-based paint was specified and recommended by federal and state agencies for use in public and private buildings.

CALIFORNIA Appellate Updates:

The defendants appealed the trial court’s decision and, on November 14, 2017, the Sixth District Court of Appeals reduced the judgment from homes constructed prior to 1980 to only pre-1951 homes. It directed the trial court to recalculate the amount that defendants must pay into a fund to cover the cost of inspecting and abating private residences built before 1951. The Court of Appeal also directed the trial court to appoint a suitable receiver to administer the fund.

On December 22, 2017, the defendants filed petitions for review of their liability with the State Supreme of California.  On February 14, 2018, the State Supreme Court of California denied the petitions for review, with two Justices who would have granted review dissenting from the denial of review.

The Superior Court of California issued an order for Recalculation of the Abatement Fund on September 4, 2018 and the amount of the abatement fund was reduced from $1.5 billion to $409 million.

In 2018, the companies sought the United States Supreme Court to review the important First Amendment and Due Process rights infringed on by the California state court’s decision of liability.  The U.S. Supreme Court declined to review the case, however, its decision not to review the case is not a ruling on the merits of the important constitutional issues raised by defendants.

California’s decision is an outlier and at odds with courts across the country which have correctly held that companies should not be held retroactively liable for lawful conduct and truthful commercial speech decades after they took place.

Courts Have Held Public Nuisance Lawsuits Invalid as a Matter of Law

Here are excerpts from rulings in those earlier public nuisance cases filed by governments, beginning with the most recent decision:

Rhode Island [State of Rhode Island v. Lead Industries Association, Inc., et al.]. On July 1, 2008, the Supreme Court of Rhode Island unanimously found many deficiencies in the State’s public nuisance claim, including its failure to identify the location of the nuisance, to show interference with a public right, or to establish that the defendants had caused any nuisance. The Court rejected a case filed by the state Attorney General, finding that “the public nuisance claim should have been dismissed at the outset.”

The Rhode Island Supreme Court ruling reached several important conclusions relevant to California:

Public Nuisance: “We agree with defendants that the public nuisance claim should have been dismissed at the outset because the state has not and cannot allege that defendants’ conduct interfered with a public right or that defendants were in control of lead pigment at the time it caused harm to children in Rhode Island.”

“The law of public nuisance never before has been applied to products, however harmful. Courts in other states consistently have rejected product-based public nuisance suits against lead pigment manufacturers, expressing a concern that allowing such a lawsuit would circumvent the basic requirements of products liability law.”

Landlords’ Responsibilities: “The legislative body made clear policy decisions about how to reduce lead hazards in Rhode Island homes, buildings, and other dwellings and who should be responsible. Importantly, the General Assembly has recognized that landlords, who are in control of the lead pigment at the time it becomes hazardous, are responsible for maintaining their premises and ensuring that the premises are lead-safe.”

Ohio [City of Toledo, Ohio v. Sherwin-Williams Company, et al.] In a decision on Dec. 12, 2007, the Court of Common Pleas of Lucas County granted defendants’ motion to dismiss a public nuisance case filed by the city of Toledo. It said, “this Court finds that public nuisance actions…were intended to be abrogated by the Ohio Product Liability Act.” The City did not appeal the dismissal.

Ten other Ohio cities and the Ohio Attorney General then voluntarily dismissed their lawsuits. Then-Ohio Attorney General Richard Cordray said he reached the decision “[a]fter assessing the law, facts and adverse rulings in these types of cases nationally….”

New Jersey [Re Lead Paint Litigation]. On June 15, 2007, the New Jersey Supreme Court, , rejected a public nuisance claim brought by 26 municipalities, holding that the “plaintiffs’ complaints aim wide of the limits of that [public nuisance] theory.” It added that:

“[w]ere we to permit these complaints to proceed, we would stretch the concept of public nuisance far beyond recognition and would create a new and entirely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.”

It further said that the state legislature,

“consistent with traditional public nuisance concepts, recognized that the appropriate target of the abatement and enforcement scheme must be the premises owner whose conduct has, effectively, created the nuisance.”

As in California, New Jersey has a wide-ranging lead poisoning prevention program. The New Jersey Supreme Court acknowledged enactment of the state’s “careful and comprehensive” statutory framework for addressing lead paint. A decision finding for the plaintiffs, the Supreme Court said, “[w]ould be creating a remedy entirely at odds with the pronouncements of our Legislature.”

Missouri [City of St. Louis v. Lead Industries Association, Inc.]. In rejecting a public nuisance lawsuit by the City of St. Louis, the Missouri Supreme Court ruled on June 12, 2007 that the fundamental principle of tort law requiring the plaintiff to prove that the defendant’s product caused its alleged harm

“[a]pplies with equal force to public nuisance cases brought by government entities for monetary damages accrued as an alleged result of the public nuisance.”

Chicago [City of Chicago v American Cyanamid]. On Jan. 14, 2005, an Illinois Appellate Court affirmed dismissal of a case brought by the City of Chicago. The state Supreme Court declined to accept Chicago’s petition appealing the Appellate Court’s decision. The Illinois Appellate Court said:

“We therefore hold that the conduct of defendants in promoting and lawfully selling lead-containing pigments decades ago, which was subsequently lawfully used by others, cannot be a legal cause of plaintiff’s complained-of injury, where the hazard only exists because Chicago landowners continue to violate laws that require them to remove deteriorated paint.”

New York [Richard K. Brenner. et al., v. American Cyanamid Company, et al. and Kayla Sabater, et al., v. Lead Industries Association, Inc., er al.]. In January 1999, the City of New York voluntarily dismissed claims brought in 1989 against the companies, including a claim of public nuisance.  The case became dormant after September 2001, and was subsequently dismissed on the court’s docket.

In 1998 four private plaintiffs in New York State filed suit against the companies. The suit brought several claims, including a claim of nuisance. Ruling in 2000, a New York Supreme Court judge dismissed the nuisance claim, saying “the facts alleged do not fit the statutory definition of a public nuisance.” All other claims were also dismissed.

Other Public Nuisance Cases Dismissed or Rejected by Juries

Milwaukee [City of Milwaukee v. NL Industries]. In a case brought by the City of Milwaukee, a jury was asked to find a former lead pigment manufacturer, NL Industries, liable for having created a public nuisance in Milwaukee. The jury declined on June 27, 2007, saying that NL did not engage in wrongful conduct in selling lead pigment.

On Nov. 25, 2008, the Wisconsin Court of Appeals affirmed the jury’s verdict, saying that the “evidence was sufficient to support the jury’s finding that NL Industries did not intentionally cause the public nuisance found by the jury.”

It also stated:

“We conclude that there is credible evidence in the record to support the jury’s conclusion that NL Industries did not know that the public nuisance found by the jury was resulting or was substantially certain to result from its conduct, where the dangers associated with lead dust, which are largely responsible for the hazardous childhood lead exposure at issue, were unknown during the time NL Industries sold lead pigment and paint.”

On April 14, 2009, the Wisconsin Supreme Court denied plaintiff’s petition to review the Court of Appeals ruling.

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