Q&A with Motley Rice's Fidelma Fitzpatrick

, The Litigation Daily

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On Monday, a state judge in San Jose ordered three companies to pay $1.1 billion to clean up lead paint in older homes around California. In a case brought by Santa Clara County and joined by nine major counties and cities in the state, Santa Clara County Judge James Kleinberg ruled after a bench trial that the companies are liable for creating a public nuisance by manufacturing and promoting lead-based paint for use inside homes despite knowledge that lead was toxic to children. (You can read his decision here.)

The verdict against three companies---the Sherwin-Williams Company, NL Industries Inc. and ConAgra Grocery Products--breaks a long winning streak by defendants, who despite public nuisance litigation in seven states, have never had to pay a penny in damages. (They have promised to appeal.) Kleinberg dismissed two defendants, Atlantic Richfield Co. and E.I. DuPont de Nemours and Co., on the grounds that no evidence was presented that they had marketed lead paint in California after risks became known. 

We caught up with Fidelma Fitzpatrick of Motley Rice, co-lead trial counsel for the plaintiff municipalities, to discuss the verdict. (This interview has been edited for clarity and length.)

Litigation Daily: Why do you think this public nuisance claim had such traction in California?  

Fidelma Fitzpatrick: California has long recognized the application of public nuisance law in cases of environmental contamination--from contamination of water supplies from dry cleaner chemicals to pesticide applications.  The main issue is whether the companies affirmatively instructed homeowners and painters to use lead pigment in a hazardous way--not simply whether they made a product that happened to harm others.  It is the instruction to use this paint in a way that they knew was harmful to children that is the cornerstone of liability against the lead pigment companies.

LD: Your clients, the municipalities, determined to go forward only on the public nuisance cause of action, even though there were potential negligence and other claims. Why?

FF: It's really the claim that gets us where we need to be: the remediation of lead paint in homes. It gives the biggest public health benefit to children. The goal of the public entities suing was always, "Help us fix the problem."

LD: Under the state's public nuisance law, the judge had to find that there was a present danger in order to find for the plaintiffs. But the defendants argued that the threat is now minimal, noting that in 2000, when the suit was filed, more than one in ten children in the state had elevated lead levels, but that fewer than one in 100 had elevated levels by 2011. Why didn't that argument hold water?

FF: That defense argument actually ended up supporting our argument that, if you take action, you can reduce the harmful consequences of the paint. Kleinberg notes that any decline in the lead poisoning numbers elevation numbers has come because the government, parents, the public and homeowners have put such a huge amount of resources into solving the problem, including lead abatement and treating lead poisoned children other efforts. The award in this case orders the companies to pay into a fund that thecities and counties plaintiffs may use to continue to fix the problemand in prevention efforts.

LD: The California case is the last of a string of public nuisance cases filed against former lead paint manufacturers and their successor companies. It was widely viewed as the end of the road for such litigation. Does a win here open up a window to more such suits?

FF: I believe that it does. I think other plaintiffs will be considering their options now, including whether they can use litigation to hold those who created this mess accountable for helping to clean it up. There's no statute of limitations on such continuing public nuisance claims. Whoever created a public nuisance continues to be responsible for it, and in most states, municipal entities are not subject to statutes of limitation in any event.

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