August 14, 2013

Plaintiffs wrap up in lead paint trial; defendants plan to move for summary judgment

Health officials from Solano, Monterey and Alameda counties on Monday testified about the hazards lead paint poses in their jurisdictions and the need for abatement programs in a trial that seeks to attach blame to former lead paint and pigment manufacturers.

“There’s no safe level, so any detectable level constitutes lead poisoning, [resulting in] children’s IQ impairment, impairment of memory, difficulty with problem solving, inattentiveness, etcetera,” said epidemiologist Bela Matyas, director of Public Health for Solano County and the plaintiff’s final expert witness in the “public nuisance” bench trial now going into its fifth week in Judge James P. Kleinberg’s court.

Ten cities and counties in California are seeking an estimated $1.4 billion in abatement damages from five parent and current paint companies of one time lead paint and pigment – NL Industries, the Sherwin-Williams Company, ConAgra Grocery Products, DuPont and Atlantic Richfield Company (ARCO).

Defendants, who have argued that the case lacks merit, will present their side this week, including a motion for summary judgment expected to be filed Tuesday by ARCO and Sherwin Williams.

Plaintiffs will have until Wednesday to respond to the motion for summary judgment. Depending on Kleinberg’s decision, the trial could resume Thursday.

In the end, not only will Kleinberg rule on the public nuisance claim, if he agrees with plaintiffs, he  will establish the cost and parameters of the abatement program for the 10 cities and counties bringing suit.

Through the course of trial, witnesses for both sides have testified that lead based paint is not the only exposure to lead children face.

“We know there are other sources of lead exposure,” testified Mark Gregory Allen, retired director of Alameda County’s Lead Poisoning Prevention Program. “We’ve discovered pottery, home remedies, mini blinds, children’s toys, jewelry, lunch pails. We are clear that removal of lead based paint from houses has a direct correlation to reduction of blood lead levels.”

Plaintiffs’ witnesses have testified that lead paint is the most common cause of lead exposure, except in Seaside, located in Monterey County, where a large concentration of lead poisoning in a Latino community is said to be caused by candy and imported foods from the Oaxacan region in Mexico. Families in this community eat imported candy and chapulines, dried grasshoppers, according to court testimony.

“Food analysis indicated that chapulines contained 2,300 parts per million of lead,” testified, Anne Reeves, supervising nurse and coordinator of the Childhood Lead Poisoning Prevention Program in Monterey County.  She estimates her program receives 10-20 cases each month of childhood lead exposure.

Throughout Monterey County as a whole, lead based paints remains the major cause of concern, she testified.  Reeves even changed the county’s public outreach literature about lead based hazards to express the health risk that lead-based paint exposure posed.

“We didn’t want anyone to dismiss the potential harms of paint,” she said.

Reeves also changed the county’s website to include lead paint as a hazard.

During cross examination, Sherwin Williams’ attorney Robert Mittelstaedt presented an email from Reeves stating it was not her idea to change the website, suggesting her move was in response to pressure from Monterey County counsel, in anticipation of the lead paint litigation.

Referring to the county’s own documents, Mittelstaedt argued that Monterey County only had one reported house with lead paint dust or lead laden soil. He displayed county records from 2000 to 2008 and showed a chart his defense team devised, breaking down results over eight years.

“There were 297 environmental investigations since 2000 and only 27 were lead paint or paint dust or soil hazards,” he said.

Going through the various cases of lead poisoning, Mittelstaedt read the documented causes:   “Mexican candy; next one says Mexican candy; next one says Mexican candy; next one says unknown, next one is due to Mexican candy; next two are false positives; next two are due to Mexican candy,” he said.

During redirect, Reeves testified the high rates of Mexican candy cases were due to a public health doctor’s focus on the community of Seaside, where a large community of Oaxacan immigrants lived and had high cases of lead poisoning due to eating imported food from Oaxaca. Some cases of childhood lead poisoning were prenatal. Reeves said that the community was an anomaly and didn’t reflect the census of Monterey County.

Plaintiffs’ witnesses also testified that lead paint is a serious problem in homes in their jurisdictions: an estimated 174,000 in Oakland; 80,000 to 90,000 in Monterey County; 75,000 to 80,000 in Solano County; and more than 100,000 in Alameda County were built before 1978, when lead based paint was banned, and therefore pose a high risk of contamination and exposure to children.

Loyd Ware, program manager for the city of Oakland’s Housing and Community Development Department, took the stand to testify about the difficulties of lead paint abatement with current resources. Ware, who has worked for the city for 25 years doing housing rehabilitation, including lead paint abatement, estimated that 80-90 percent of Oakland’s housing stock was built before 1978.

He called the 800 homes his office has rehabilitated from lead paint since 1999 the “tip of the iceberg.”

“800 houses and there’s 174,000,” Ware said. “That’s the pin point on the needle you find in a hay stack.”

To demonstrate the extent of exposure children are subjected to in inadequately maintained homes, lead trial counsel Mary Alexander presented a series of photographs documenting a dilapidated house in Oakland.

The photographs Alexander entered into evidence showed a house with visibly peeling paint on the exterior, peeling paint on a garage door, deteriorating paint on window trim, peeling paint on a car cover and an interior, dented wall that showed a substrata of lead paint under a newer gloss coating of paint.

“We don’t have the resources,” said Ware who continued that his office has been unable to provide abatement and rehabilitation services to all the city’s applicants.

Mittelstaedt objected to Ware’s testimony.

“The resources of this entity to be able to abate should not be an issue in this case,” he argued.

Kleinberg overruled.

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