Although the corporations that manufactured lead-based pigment used to paint millions of American homes knew all along that lead is toxic, they have escaped liability basically scot-free. Over the past 24 years, the industry has beaten more than 50 lawsuits filed by state and local governments seeking to fund lead removal. The last of those cases is being tried now in San Jose, as ten local governments seek to force it to inspect more than 3 million California homes and remove lead paint hazards at an estimated cost of more than $1 billion.

Exposure to lead causes permanent brain damage, lower IQs, and learning disabilities. Although lead has been banned for residential use since 1978, the U.S. Centers for Disease Control and Prevention recently raised its estimate of the number of American children with too much of it in their system to 535,000. Lead has been linked to anti-social and criminal behavior, and also to stunted growth, seizures and myriad maladies.  

That the lead makers knew their product was toxic is beyond doubt. In 1900, for example, a Sherwin-Williams corporate newsletter called lead a “deadly cumulative poison,” and four years later the company magazine stated that lead was “poisonous in a large degree, both for workmen and for the inhabitants of a house.” By 1912, National Lead, one of the leading manufacturers, banned women and children from working with lead because of its known toxicity, yet continued to manufacture it for use in homes.

The industry has succeeded where Big Tobacco could not for various reasons. Individual plaintiffs claiming health damage from lead, for example, have a hard time proving that lead paint, as opposed to leaded gasoline or other possibilities, was the source of the lead that harmed them. And unlike tobacco cigarettes, none of the leaded products were intended for human consumption.

The local government suits have failed because industry attorneys persuaded state court judges to require strict proof of which companies manufactured the lead pigment used in specific buildings and neighborhoods. Because of the nature of lead and of lead paint, such proof simply does not exist.

At the same time, the courts rejected efforts to assign liability according to company market shares, out of fear that this approach “risks exposing these defendants to liability greater than their responsibility and may allow the actual wrongdoer to escape liability entirely,” as the Missouri Supreme Court put it in 2007. That court, apparently, thought that letting all the wrongdoers escape liability entirely was a better alternative, and most other courts have agreed.

-Matt Bewig

To Learn More:

After Flicking Away Lawsuits, Lead Industry Goes for a Final Knockout (by Lilly Fowler, Fair Warning)

People v. Atlantic Richfield Corp. (Fourth Amended Complaint) (pdf)

$1 Billion Lead Cleanup Lawsuit Underway after 13 Years of Legal Maneuvering (by Ken Broder, AllGov California)