States with lead pigment litigation activity include California, Illinois, Mississippi and Wisconsin. Some cases filed against individual companies may not be reflected in this section. Scroll down to see a summary of all activity, or select a state to view information about specific cases.
People of the State California, et al. v. Atlantic Richfield Company, et al.
Location: Superior Court of the State of California, County of Santa Clara.
Capsule Summary: In the Santa Clara, 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. Originally filed on March 23, 2000 by the County of Santa Clara, the case went to trial on July 15, 2013.
Judge James P. Kleinberg presided over a five-week bench trial. Closing arguments were heard on September 23, 2013. On December 16, Judge Kleinberg issued his proposed statement of decision, dismissing Atlantic Richfield and DuPont and ordering the other three defendants to pay $1.1 billion into a fund to be managed by the State or its Childhood Lead Poisoning Prevention Branch and distributed to the 10 plaintiff cities and counties as needed by grants. The trial court also denied Sherwin-Williams’ cross-claim for declaratory relief. On January 7, 2014, Judge Kleinberg issued his final order, increasing the liability to $1.15 billion. The three liable defendants have called the court’s decision “wrong under California law and wrong on the facts.”
On March 24, the Judge denied all post-trial motions made by the liable defendants to vacate the Amended Judgment and to grant a new trial. The trial court modified the judgment consistent with plaintiffs’ post-trial motion to address the establishment and administration of the court-ordered fund. On March 28, the three liable defendants filed notices of appeal. The notices of appeal effect an automatic stay of the judgment without any need to post a bond. Plaintiffs initially appealed the trial court’s judgment in favor of Atlantic Richfield and DuPont, and Atlantic Richfield and DuPont filed protective cross-appeals. Plaintiffs then dismissed Atlantic Richfield and DuPont after each agreed to withdraw its request for costs.
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. Plaintiffs sued five former manufacturers of white lead pigments or their alleged successors: Atlantic Richfield Company; ConAgra Grocery Products Company; E.I DuPont de Nemours and Company; NL Industries, Inc.; and The Sherwin-Williams Company. However, Atlantic Richfield and DuPont were found not liable by the trial court.
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.
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.
Seven other states have already rejected similar public nuisance claims. Cases in Ohio, Rhode Island, Missouri, New Jersey, Illinois, New York and Wisconsin were all rejected or voluntarily dismissed. All those courts got the law right. The California court did not. The Rhode Island Supreme Court put it best in its ruling, stating: “This case should have been dismissed at the outset.”
Lewis v. Lead Industries Association, Inc.
Location: Circuit Court of Cook County, Illinois
Capsule Summary: This case is a purported statewide class action suit that was originally filed on June 23, 2000. The plaintiffs are seeking to recover the cost of children’s blood lead tests. They do not claim any personal injury. The plaintiffs are proceeding on a theory that tortious conduct by pigment manufacturers caused the Illinois legislature to enact a law mandating blood lead screening for children in designated “high risk” areas. They seek to recover the cost of such screenings. After initially certifying a class, the trial court then de-certified the class. Plaintiffs have moved recently to re-certify the class. The case is currently in discovery.
The defendants are: NL Industries, Inc.; Atlantic Richfield Company; ConAgra Grocery Products, Inc.; and The Sherwin-Williams Company.
Banks et al. v. Vickers et al.
Location: Circuit Court of Bolivar County, Mississippi, First Judicial District
Capsule Summary: In this products liability action filed in 2001, five plaintiffs allege that they ingested Sherwin-Williams’ industrial lead-based paint purportedly used by Head Start on playground equipment. On January16, 2014, the trial court granted summary judgment in favor of Sherwin-Williams, based on a lack of product identification. The Mississippi Supreme Court has reversed the summary judgment, finding an issue of fact remains, and remanded the case for further proceedings.
Lambouths et al. v. Sylvester Vickers et al.
Location: Circuit Court of Bolivar County, Mississippi, First Judicial District
Capsule Summary: The three plaintiffs in this products liability action allege that they ingested Sherwin-Williams’ industrial lead-based paint purportedly used by Head Start on playground equipment. The Circuit Court in 2009 denied Sherwin-Williams’ motion for summary judgment asserting a lack of product identification. The case is currently stayed, because of the appeal in Banks.
Gibson v. American Cyanamid Co. et al.
Location: Originally filed in Milwaukee County Circuit Court. It was later removed to the U.S. District Court, Eastern District of Wisconsin.
Capsule Summary: Gibson filed suit in 2005, alleging he was injured by ingesting paint containing white lead carbonate pigments at a residence in Milwaukee. The plaintiff was unable to identify the specific manufacturer, supplier or distributor of the white lead carbonate he allegedly ingested, and relied on the Wisconsin Supreme Court’s decision in Thomas v. Lead Industries Association permitting plaintiffs in lead pigment cases to attempt to rely on the “risk contribution” theory that does not require proof of manufacturer identification.
Defendant Atlantic Richfield, and later the other defendants, moved for summary judgment, challenging the Thomas decision as a violation of constitutional due process rights, because it applies a new rule of law retroactively.
Ruling on June 15 and November 15, 2010, U.S. District Court Judge Rudolph T. Randa granted defendants’ motions for summary judgment, finding that defendants’ potential liability under the risk contribution rule of Thomas is unconstitutional.
On July 24, 2014, the 7th U.S. Circuit Court of Appeals reversed Judge Randa’s 2010 decision, saying the “risk contribution theory survives substantive due process scrutiny, as well as the manufacturers’ other constitutional challenges.” The opinion, written by U.S. District Judge Edmond Chang, remands the case to federal court in Milwaukee.
The manufacturer defendants are: American Cyanamid Company; Armstrong Containers, Inc.; Atlantic Richfield Company, E.I. DuPont de Nemours and Company; and The Sherwin-Williams Company.
Clark v. American Cyanamid, et al.
Location: Wisconsin Circuit Court, Milwaukee County
Capsule Summary: This case, filed December 27, 2006, brings strict liability and negligence claims on behalf of the plaintiff, who claims injury from ingesting white lead carbonate pigments contained in paint. The suit is based on Wisconsin’s risk contribution theory. Proceedings were stayed pending appeal in the Gibson case.
On July 22, 2013, the defendants filed a motion to lift the stay and a motion for summary judgment to dismiss the case, based on new Wisconsin legislation making the statutory risk contribution criteria applicable to pending cases. Plaintiffs argue that the new Wisconsin law violates the state constitution in several ways.
A hearing on defendants’ motion for summary judgment was held on October 31, 2013, during which the court set an additional briefing schedule. On November 14, 2013, plaintiffs filed a motion for partial summary judgment. A hearing was held on January 23, 2014 on the motions. On March 25, 2014, the court denied defendants’ motion for summary judgment and granted plaintiffs’ motion for partial summary judgment stating that retroactive application of the state statute is unconstitutional as a violation of the plaintiffs’ right to due process guaranteed by the Wisconsin Constitution. On April 8, 2014, defendants filed a petition for an interlocutory appeal of this decision, which the Court of Appeals granted. The appeal is pending.
Defendants in the suit include: American Cyanamid Company; Armstrong Containers, Inc.; Atlantic Richfield Company; E.I DuPont de Nemours and Company; and The Sherwin-Williams Company.
Williams, et al. v. Goodwin et al.
Location: Wisconsin Circuit Court, Milwaukee County
Capsule Summary: This case was originally filed on January 21, 2011, and an amended complaint was filed on Janunary 26, 2011. The suit brings strict liability and negligence claims on behalf of the plaintiff, who claims injury from ingesting white lead carbonate pigments contained in paint. The suit is based on Wisconsin’s risk contribution theory. Proceedings were stayed pending appeal in the Gibson case.
On July 1, 2013, defendants filed a motion to lift the stay and to dismiss the case based on new Wisconsin legislation making the statutory risk contribution criteria applicable to pending cases. Plaintiffs filed a partial summary judgment motion arguing that the new law violates the state constitution in several ways. During a hearing on December 13, 2013, the court granted partial consolidation of the Williams and Clark cases for decision of the defendants’ motion to dismiss and plaintiffs’ motion for partial summary judgment. However, the March 25, 2014 decision in Clark, which denied defendants’ motion to dismiss and granted plaintiffs’ motion for partial summary judgment, was entered only in Clark.
Defendants in the suit include a property owner; a property manager; two insurance companies; and American Cyanamid Company, Armstrong Containers, Inc., E.I. DuPont de Nemours & Company, the Atlantic Richfield Company, and The Sherwin-Williams Company. The suit seeks compensatory damages against the “industry defendants.”
Burton v. American Cyanamid, et al.
Location: United States District Court for the Eastern District of Wisconsin
Capsule Summary: Plaintiffs in four suits filed in federal court and assigned to Judge Lynn Adelman sought damages under the risk contribution theory for injuries allegedly incurred from ingesting white lead carbonate pigments contained in paint. Defendants contended that allowing the plaintiffs to use the risk contribution theory would violate their constitutional rights, and moved for summary judgment. On April 5, 2011, Judge Adelman, in rulings that conflict with Judge Randa’s decision in Gibson, held that the Wisconsin Supreme Court’s application of the risk contribution theory to white lead carbonate pigments in paint did not violate federal due process and denied the defendants’ motion for summary judgment. He granted the parties’ request to stay proceedings in the cases pending the plaintiff’s appeal of Gibson.
On July 2, 2013, the plaintiffs filed a motion for leave to file an amended complaint to challenge the constitutionality of the new Wisconsin bill clarifying the risk contribution rule. Defendants filed their opposition on July 23, 2013 stating that the basis for this court’s stay is unchanged and the stay should continue. The court has yet to rule on the plaintiff’s motion.
Additional Litigation in Wisconsin
Summary: In addition to Burton, five additional actions are currently pending before Judge Adelman in the Eastern District of Wisconsin asserting personal injury claims on behalf of approximately 165 individual plaintiffs (most of them joined as plaintiff in a single action, the Allen case). All cases have been stayed pending the appeal in the Gibson case. The manufacturer defendants in those cases, all filed by individual plaintiffs, include: American Cyanamid Company; Armstrong Containers, Inc.; Atlantic Richfield Company; E.I DuPont de Nemours and Company; and The Sherwin-Williams Company.
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 companies will seek United States Supreme Court review of the important constitutional principles infringed by the California state court’s decision.
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