Christina Aanestad Aug. 12, 2013, 11:57pm

SAN JOSE, Calif. (Legal Newsline) – Research director Dr. David Jacobs of the National Center for Healthy Housing and an authority in abatement procedures testified for plaintiffs Thursday that the cost of a lead paint abatement program could exceed $1.4 billion in the 10 California jurisdictions pursuing a “public nuisance” case against paint manufacturers.

The trial taking place in Santa Clara County Superior Court Judge James Kleinberg’s court is now into its fourth week. The case is expected to continue next week when plaintiffs introduce their last witness and defendants take the stand to argue that no public health threat exists, and that for what little exposure does exist in California, lead paint is not the primary source.

The plaintiffs, including Los Angeles and Santa Clara Counties and the cities of San Diego and San Francisco, are asking one time lead paint and pigment manufacturers to pay for the abatement costs of eliminating lead paint from homes to protect public health. Defendants NL Industries, the Sherwin-Williams Company, ConAgra Grocery Products, DuPont and Atlantic Richfield Company (ARCO), claim the suit is without merit, that blood lead levels in California are close to zero and that other exposures, such as gasoline, are more likely to elevate blood lead levels than lead paint.

Congress banned lead-based paints in the U.S. in 1978, but plaintiffs contend the paint remains in millions of homes and is the primary source of childhood lead poisoning today.  The remedy for this public nuisance, they argue, is abatement since no exposure to lead is safe.

Jacobs said that under an abatement plan, jurisdictions would prioritize properties to qualify for a defendant-funded program. He said priorities could include homes where children have elevated blood lead levels or with properties that have 10 or more code violations.

Defense attorney Robert Mittlestaedt, counsel for Sherwin Williams, countered Jacobs’s abatement plan, likening the proposal to welfare for slum lords.

“If I’m a property owner then I can avoid the District Attorney and get all this paid for, for free by five companies, as long as I get on that priority list,” he said. “The way is to get 10 violations—that’s the incentive it would create.”

Throughout the weeks-long trial, defendants have challenged plaintiffs’ theory that lead paint is a primary source of exposure and the efficacy of abating lead paint in homes. They contend it’s difficult to point to the lead paint industry as the primary cause of childhood lead poisoning.

They refer to a 2009 report that Jacobs co-authored.

“Another important source of lead in dust and soil is the estimated 5.9 million tons of gasoline lead emitted from motor vehicles before its removal in the mid 1980s,” the report states.

And since lead from vehicle emissions eventually settles down onto the ground and soil, defendants argue that plaintiffs can’t sufficiently prove lead-laden soil near homes is a result of lead based paint.

Elevated blood lead levels could also be a result of second hand smoke, argued Middlestaedt, referring to Jacobs’s report.

“You found children in homes with smoking had significantly higher blood lead levels than in children in homes without smoking,” he said.

Defendants argue that there are multiple sources of lead exposure, so, therefore, they cannot be held solely accountable. As Legal Newsline has previously reported, <> Los Angeles County Public Health official Dr. Cyrus Rangan testified in his jurisdiction that two of five childhood lead poisoning cases he saw in recent years were due to lead in candy.

On Thursday, plaintiffs also called Childhood Lead Prevention Program Coordinator for San Francisco Joseph Walseth to testify. He estimated that his office has seen 500 cases of childhood lead poisoning in the last 15 years. He said that he saw 45 cases in 2010 in which children tested at more than 9.5 micrograms per deciliter. Testing at a level of 5 or more is cause for concern.

“No child should have a blood lead level,” Walseth said. “This is a completely preventable childhood illness, there should be no child exposed.”

But, according to defense attorney Sean Morris, also for ARCO, San Francisco had only one case of childhood lead poisoning in 2011.

Defendants say the decline in childhood blood levels is so low that several counties including San Mateo and San Francisco didn’t have a single case of childhood lead poisoning in 2012.

Plaintiffs argue that since there is no cure, prevention is the primary strategy in combating childhood lead poisoning. To that end, they argue for the eradication of what they say is the primary source of lead exposure to children – lead paint. They say that since defendants once made the toxin that they should be responsible for removal of the toxin they created.

“We know homes with kids who have [elevated blood lead levels] don’t get enforced,” Jacobs said. “Enforcement needs to be improved, people are overwhelmed, resources are overwhelmed- that’s what this [suit] is all about.”

Middlestaedt questioned the “unintended consequences” on property owners if a “court declared 3.5 million homes to be a public nuisance.”

Jacobs testified he didn’t investigate the impact of what a public nuisance label could have on homeowners’ insurance rates or property taxes in the prosecuting jurisdictions.

One thing both parties have agreed on is that childhood blood lead levels have steadily declined over the past 50 years.

Defendants claim existing programs are sufficient to combat childhood lead poisoning.

“These cities and counties are achieving great results and also acknowledge that enforcing existing laws only strengthens their childhood lead poisoning prevention efforts,” said Bonnie Campbell, former Attorney General for Iowa and spokesperson for defendants.

Defense attorneys for Sherwin Williams indicate they will file a motion to dismiss the suit after plaintiff’s last expert witness takes the stand next week.

“Although plaintiffs still have more to present at trial, plaintiffs have not and cannot prove their case,” Campbell said.

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