Sunday, August 12, 2007

Lead Paint Litigation Update

Here is the latest update on lead paint proceeding affecting Sherwin Williams (SHW) and NL Industires (NL)

From Jane Genova's Law and More

This post is derived from LexisNexis Mealey's Litigation Report on Lead, Volume 16, Issue # 10, August 2007. Since so many lead-litigation issues, including the ones associated to Chinese imports of children's toys and trinkets, are emerging, I am going to focus this post only on the public nuisance class action ones. I will post on the other important issues later.

Documents associated with this litigation are available from LexisNexis Legal News, or by directly contacting James Cordrey, Legal Editor,, 610-205-1125.

On behalf of readers, I want to thank Mr. Cordrey of LexisNexis for doing such a comprehensive job of tracking developments in lead litigation and providing these updates.


No surprise, it appears that the landmark April 4th contingency ruling by Judge Jack Komar in County of Santa Clara, et al. v Atlantic Richfield Co., et al. No. 1-00-CV-788657, Calif. Super, Santa Clara Co. isn't going to go down without a fight from the plaintiff.

On June 29th, the California Association of Counties filed an amicus brief in the suit that had been filed against the former lead paint/pigment industry players by a number of CA counties. In that brief they contended that public nuisance actions provide a important function in maintaining the public health.

Specifically, the argument presented by the organizations is:

"Given the importance of public nuisance actions to address both large- and small-scale harms to the public, this court should reverse the trial court's ruling, which would have the practical impact of significantly limiting or eliminating all together the ability of cities and counties to bring public nuisance actions."

In addition, they contend that Judge Komar's decision to abolish contingency fee agreements does not consider the unique aspects of People ex rel. Clancy v. Superior Court [1985] 39 Cal. 3d 740, 743 Shepardize. In that case, Clancy was disqualified based on the egregious, case-specific facts. As a result, the group concludes, the disqualification is not required under case law merely because financial assistance to the government has made the litigation economically feasible.

The economic argument being used is one of "realities" regarding resources. Specifically, the brief contends:

"Regardless of the number of public lawyers available to a public entity, it would be virtually impossible for any city or county in this state to match the resources at the disposal of Atlantic Richfield's counsel and its 625 lawyers"


Another no surprise is that the plaintiff in City of Milwaukee v. NL Industries Inc. No 01-CV-3066, Wis Cir., Milwaukee Co, filed a memo on July 12. That memo supported a motion to change the June 22 special verdict which found the NL Industries do not intentionally cause a public nuisance. The key argument is that the record lacks evidence to support that verdict.

Specifically, the city of Milwaukee contends that errors in they jury instructions warrant changing the verdict. It asks that NL Industries be found to have:

"intentionally caused the public nuisance in this case because NL knew, or was substantially certain, that its sales of - and conduct in - promoting lead paint and pigment were harming children and causing a public health threat."


On August 1, the Ohio Supreme Court ruled that Governor Ted Strickland's veto of a bill prohibiting public nuisance lawsuits against the former lead paint/pigment industry parties was invalid. That was because the 10-day waiting period under which the governor was permitted to take action had passed. State ex rel. The Ohio General Assembly, et al. v. Jennifer Brunner No. 07-0209, Ohio Sup.

The legal team representing Jennifer Brunner has 90 days from that decision to request a stay. If that stay is granted, then there could be a petition for a referendum to put the issue to voters

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