Jul-24-2001 Paint firms say they want cities' lawsuit tossed

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U.S. chemical companies, trying to gain strategic advantage in a lead-poisoning lawsuit by California municipalities, have made another attempt to punch a hole in the case by attacking one of its chief claims -- the contention that paints sold through the mid-1950s were a "public nuisance."

Responding in Santa Clara County Superior Court to the public entities' third amended complaint, the companies argued that a critical public-nuisance charge dismissed by Judge Gregory Ward on June 1, but with permission to amend, should remain dead and buried.

The claim, revised and filed again three weeks later, is important because, if successful, it would enable authorities to solve what they say is a huge public-health problem by forcing the companies to pay for costly cleanup programs. According to the law, "public nuisance" refers to a range of actions, from petty to serious, that interfere with a common right and result in harm to public health, safety, peace, comfort or convenience.

The companies said Friday, however, that there is no legal basis for the claim, which they argued was essentially identical to the one Ward had provisionally tossed.

They argued further that the claim more properly belonged in the narrower realm of product-liability law, which allows payments for proven past injuries, but not for the prevention of future harms.

The companies said the public entities were asking Ward to "fundamentally rewrite California . . . law," citing a precedent favorable to them set in a 1994 suit by the city of San Diego against the U.S. Gypsum Co.

They also said: "Plaintiffs' attempt . . . would subject manufacturers, distributors and retailers of hundreds of everyday goods to vastly increased liability under the amorphous concept of 'nuisance.' "

Industry spokesman Drew Ketterer, former attorney general of Maine, said yesterday: "The facts and the law are on our side. The San Diego case makes it crystal clear that nuisance claims are barred against manufacturers."

The plaintiffs, which include San Francisco, San Jose and Oakland, initially brought suit in March 2000. They're accusing the industry of conspiring to promote and sell a toxic product -- lead paint -- that found its way into millions of American homes and buildings, on walls, furniture and even children's toys.

When ingested or inhaled, lead can cause neurological damage requiring extensive medical treatment and remedial education. Since most of the victims are young residents of older, ill-maintained low-income housing in urban areas, costs have been borne by the public. San Francisco has cared for at least 600 victims during the past decade.

Ingrid Evans, a deputy San Francisco city attorney, rejected the companies' argument that the public-nuisance claim be permanently dropped.

"The public entities have completely revamped the public-nuisance cause of action," she said. "We believe these amendments have adequately addressed the judge's concerns."

Added Kathryn Zoglin, a deputy Santa Clara County counsel: "We're not alleging that because lead paint is defective, it's a public nuisance. We're alleging that the companies' conduct in aggressively promoting and distributing the paint -- and failing to warn the public -- is the nuisance."

Defendants include Arco, Sherwin-Williams and du Pont.

Regardless of the judge's eventual ruling, the case will go forward on other charges, which include fraud, negligence and violations of the state Business and Professions Code. The next hearing is scheduled for Sept. 11.

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