Lawyers for makers of house paint are due to make their final arguments Monday in an effort to avoid a court ruling requiring them to spend as much as $2.5 billion to remove lead paint from hundreds of thousands of homes in California.
While makers of cigarettes and products containing asbestos have been required to pay billions of dollars in damages to people hurt by those items, paint companies so far have been successful in fending off lawsuits blaming them for the health problems of people exposed to lead. Since 1978, the use of lead has been banned in residential paint in the U.S.
Lawsuits have failed in Rhode Island, Missouri, Illinois, New Jersey and Wisconsin, often because plaintiffs couldn't establish that lead was a public nuisance, a legal standard that requires them to show the product interferes with public health and safety.
The 13-year-old court battle in California marks one of the most ambitious legal challenges yet for the paint industry. The case finally went to trial in mid-July in a state Superior Court in San Jose. The judge, James Kleinberg, who is presiding over the case without a jury, is expected to issue his ruling before year-end.
Asbestos cases are brought by individuals suffering from illnesses such as mesothelioma, a cancer of the lining of the lungs that most doctors believe is caused solely by asbestos exposure. Similar suits against tobacco makers that were brought by individuals flopped, but the litigation was successful when state attorneys general began suing tobacco defendants in the 1990s, and a massive settlement was reached.
Plaintiffs in lead-paint litigation have struggled to get the courts to accept that lead is a public nuisance, but in California the courts have allowed the lawsuit to proceed as a public-nuisance case, though plaintiffs will still have to prove the paint companies are liable.
The suit, filed by 10 city and county governments in California, seeks a court order requiring the defendants—current or former makers or distributors of paint and pigments—to pay to remove lead-paint hazards from homes and other buildings in Los Angeles County, San Francisco and other places where local governments have joined the legal action.
The defendants are Sherwin-Williams Co., NL Industries Inc., ConAgra Grocery Products Co., DuPont Co. and Atlantic-Richfield Co., which is owned by BP PLC.
Expert witnesses have said the cleanup efforts demanded by the suit could cost between $1 billion and $2 billion. Motley Rice, a law firm that has reaped large fees in asbestos and tobacco litigation, is representing the California plaintiffs on a contingency-fee basis.
The suit says lead paint can "severely and permanently" damage children's mental and physical development and alleges that the defendants promoted the use of lead paint despite knowing about the risks.
The suit quotes an internal Sherwin-Williams publication in 1904 describing lead in paint as "poisonous in a large degree, both for the workmen and for the inhabitants of a house painted with lead colors." A lawyer for Sherwin-Williams said that remark was in an article about a study that was later "disproven."
The city and county governments aren't seeking the complete removal of lead paint from all homes.
Instead, they want lead paint to be replaced or sealed on "friction surfaces," such as doors, windows and floors, where frequent movement could dislodge the paint.
The defendants have argued that they couldn't have known 50 or more years ago the full risks of lead, and that the use of lead paint began declining after the 1920s as knowledge of the hazards grew. They say lead levels in children's blood in California generally have declined to minuscule amounts.
They also note that old paint isn't the only source of lead risk to children; gasoline containing lead, also now banned, left residues in soil, for instance.
California already has an effective program to deal with lead-paint hazards, the defendants argue, and the suit would create an overlapping layer of regulation. The cities and counties respond that current government programs "lack the resources to force homeowners to remove all lead paint from homes."
The lawsuit argues that action is needed "before children are harmed," rather than only after they are exposed to lead.
An unintended consequence, the defendants argue, is that landlords might be less inclined to keep old homes properly painted and maintained if they believe the industry would be required to pay for a cleanup.
"This is a slumlord bailout," Antonio Dias, a Jones Day partner representing Sherwin-Williams, said in an interview.
The defendants also say that efforts to remove old paint could backfire by releasing hazardous material that now is buried under layers of modern, lead-free paint. The plaintiffs say hazards can be removed safely.
Christopher Connor, chief executive of Sherwin-Williams, told analysts in July that the industry's past legal victories in Rhode Island and other states provide precedents for the California battle. Sherwin-Williams hasn't created a reserve to pay for a possible court-ordered cleanup, he said, adding: "We've never created a reserve for lead lawsuits."
Write to James R. Hagerty at bob.hagerty@wsj.com and Dionne Searcey at dionne.searcey@wsj.com
A version of this article appeared September 22, 2013, on page B1 in the U.S. edition of The Wall Street Journal, with the headline: Paint Makers Try to Hold Off Lead-Hazard Court Ruling.
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