On January 31, the San Jose Mercury News printed a column by Lisa Rickard, President of the U.S. Chamber Institute of Legal Reform. Ms. Rickard strongly criticized the decision by Santa Clara County Judge James Kleinberg to employ public nuisance statutes to hold paint manufacturers responsible for health problems associated with the use of lead paint. Specifically, she stated, “It /the decision/ says to business executives that if you don’t have a crystal ball about alleged harm your products may cause decades in the future, even though you had no way of knowing about that harm despite plaintiffs’ lawyers claims, you can be sued and in effect liable for your lack of omniscience.”
That’s a whopper.
Ms. Rickard fails to mention a number of highly relevant elements of Judge Kleinberg’s decision.
1) Each defendant was evaluated on the specific question of whether that business had knowledge of the hazard that use of their product would create.
2) Medical and scientific literature published as early as 1917 identified the negative health effects of lead poisoning and recognized the dangers of low-level exposure.
3) Trade associations such as the Lead Industries Association acknowledged the problem of childhood lead poisoning as early as 1935.
4) In many cases, internal documents from specific firms indicated knowledge of the health effects of lead paint, particularly in relationship to workers exposed to fumes and/or dust.
5) The case against DuPont was dismissed because that firm’s residential paint products never contained white lead pigments. In fact, DuPont was a leader in the development of paints without lead content, an option that was available to other firms had they chosen to pursue a safer product line.
Judge Kleinberg’s decision – which is well worth reading (Case No.: 1-00CV-788657) – is a carefully reasoned document which clearly indicates that substantial research had been done on this issue. It does not deserve the kind of near-hysterical criticism demonstrated in the Rickard column.
Bob Brownstein is Director of Policy and Research for Working Partnerships USA.
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