Chapter 7 - If “you make a mess, you have to clean it up”- the Rhode Island and California court decisions

Abstract

Lawsuits on lead paint usually targeted landlords and sought to award damages to poisoned children. Yet most of these children did not receive damages and never went to court. Landlords thought that because they had not put lead paint in their properties, the lead, pigment, and paint industries should be accountable. Although many others failed, two courts found the manufacturers guilty. The first one in Rhode Island resulted in a jury verdict against the paint companies that was later overturned in the Rhode Island Supreme Court in 2008. The second in California survived all challenges to higher courts. Both lawsuits sought an abatement remedy, not monetary damages and both considered the merits of an abatement plan based on scientific evidence. The abatement plan was presented at trial in California but after the verdict in Rhode Island. Two legal theories were relevant to the cases. The first, product liability theory, proved untenable because it would have required identification of which manufacturer produced which lead paint on which surface in each home. The second, public nuisance theory, prevailed in both cases, meaning the companies had engaged in behavior that unreasonably interfered with the health of the general community. The California legal case took 20 years, one of the longest in the nation’s history, resulting in a judgment in 2014 of $1.1 billion for remediation to be paid by the paint, pigment, and lead industries (a settlement reduced this amount to $305 million in 2019 after all higher courts ruled against the industries). Key elements in both cases was historical evidence that the companies knew they had manufactured a dangerous product yet continued to do so and a protective and feasible abatement plan. The California court considered nine key questions and the scientific evidence presented at trial answered them. The industries fought the court’s ruling, appealing to California higher courts and attempting a hearing before the US Supreme Court, which was rejected. They also launched a ballot initiative in a California election that sought to redefine the meaning of "public nuisance," which was withdrawn following legislative hearings. These court decisions marked a new precedent and created a new scientific and legal consensus on healthy housing. In perhaps the nation’s largest lead paint remediation project in a single state, the California abatement work has begun with the industry’s payments. Other lawsuits against the industries have appeared in recent years.