Oakland is one of several California cities still waiting on more than $1 billion to pay for the removal of lead paint, which is threatening children’s health in neighborhoods such as Fruitvale. Even though a judge ruled in favor of Oakland more than two years ago, the money remains tied up in in the courts.
Oakland’s struggle to get its hands on this judgment was magnified by a recent Reuters report, which cited Fruitvale as one of 3,000 U.S. communities with lead contamination worse than Flint, Michigan.
In 2014 — and after 13 years of litigation — Santa Clara Superior Court Judge James Kleinberg ordered paint-manufacturers Sherwin-Williams, ConAgra, and NL Industries to pay Oakland $104 million. This is the city’s share of the $1.15 billion judgment after a judge ruled that the companies promoted the use of lead paint in homes.
It was the first time anyone had successfully argued that the presence of lead paint in homes was a public nuisance, and that it should be fixed by the companies that sold it.
But those companies appealed the decision to California’s Sixth District Court of Appeal, where it has remained since mid-2014. And there’s no sign that the court will hear arguments anytime soon.
“It’s disappointing,” says Larry Brooks, director of operations for the Alameda County Healthy Homes Department.
During a trial in 2013, prosecutors proved that the companies knew the lead in their paint was a hazard, even as they were advertising it, Brooks explained.
“Their own employees were getting sick making it, and they were still profit-driven,” he told the Express.
Now, a Reuters report from December detailed how, in Fruitvale, about 7.6 percent of kids have blood lead levels exceeding 4.5 micrograms per deciliter. Unlike Flint, whose lead source is its drinking water, in Fruitvale the lead comes from paint in people’s homes.
Brooks says Fruitvale is hardly unique; about 85 percent of housing in Oakland was built before 1980, when lead paint was still widely used.
The Centers for Disease Control say there is no known safe level of lead in the blood for children. Children exposed to the toxin run the risk of developing brain and nervous-system damage, as well as slowed growth and development, learning and behavior problems, and hearing and speech problems. Children under the age of six are at higher risk, especially those who live in older, poorly maintained properties. The primary source of lead exposure is through paint and contaminated dust, according to the CDC.
Nancy Fineman, an attorney with Cotchett, Pitre & McCarthy, helped Santa Clara County file the lawsuit in 2000. Oakland later joined this suit, and Alameda, Los Angeles, Monterey, San Mateo, Solano, and Ventura counties were also plaintiffs. The case nearly died in state court, but, in 2006, the Sixth District judges revived it, saying cities and counties could fight lead paint on public-nuisance grounds.
Fineman said she is frustrated by how long the appeal has remained on ice. “It’s a complicated case … so I’m sure they’re being careful. But every day that goes by means a child isn’t getting the help they need,” Fineman said.
Cathal Conneely, a spokesman for the state’s appeals courts, said that the judges indeed face a mountain of research before they hear arguments: 48 volumes of court transcripts, 17 briefs filed by different parties in the case, and 23 banker’s boxes of appendices to those filings. Four of the seven justices recused themselves from the case, as well, for reasons they kept to themselves so lawyers can’t take advantage of known biases, Conneely explained.
Sherwin-Williams, ConAgra, and NL have argued that there’s no way they could have known that lead paint — which was legal to use in housing when they promoted and sold it — would have contributed to the problems that exist today. “Back then, there wasn’t even a way to monitor the blood lead levels, so it’s an interesting theory,” said Antonio Dias of Jones Day, which represents Sherwin-Williams. “It’s a lawsuit based on hindsight.”
Sherwin-Williams Paints has been in business 1866. Through a series of mergers, ConAgra absorbed the W.P. Fuller Paint Co. — along with its legal liabilities. NL Industries, formerly known as the National Lead Company, also sold lead-based paint in the state.
The companies take issue with Kleinberg’s finding that the presence of intact lead paint in a home could be considered a public nuisance. In general, lead paint only becomes hazardous when it begins to break down — if it peels, or if it scrapes off of window and door frames through years of opening and closing them.
“There are millions of homes with lead-based paint, and they’re safe. The government says they’re safe. The health departments say they’re safe,” Dias argued.
Dias and Fineman agree that whichever side wins at the Sixth District, the other side will appeal to the California Supreme Court. But the state’s high court can opt not to take the case. If it refuses, the litigation could go to the U.S. Supreme Court.
Fineman predicted that the paint companies might take it all the way, but Dias says they are considering those options “as they come.”
While the corporations and municipalities continue the fight in court, Oakland residents are trying to figure out what to do with the news of widespread lead toxicity in kids. Ever since the Reuters report was published in December, Oakland City Councilman Noel Gallo, who represents the Fruitvale, says the main thing residents want to know is how to get their homes tested. East Bay Municipal Utility District provides water-testing kits, and hardware stores sell kits to look for lead in paint, he said.
“We want to address it, as much as we can, immediately,” Gallo said of the city’s goals. In January, he helped introduce a resolution that would require property owners to obtain lead inspections and safety certifications before selling or renting pre-1978 homes. He also admits that the city doesn’t have enough inspectors.
“We are trying to get it together,” he said.
But he also hopes that the litigation will ultimately resolve in favor of the cities and counties fighting for money to fix the problem.
“It’s heartbreaking, what happens to kids in lead poisoning, it’s awful,” Gallo said. “We’d like to see the kids get the money.”