Numerous claims have been put forward to hold the lead industry
Public nuisance: Public nuisance claims often are invoked
in cases of widespread harm. The State of Rhode Island and numerous cities,
including St. Louis and Milwaukee, have alleged that the companies created
an environmental hazard that is interfering with the health, safety, comfort,
or convenience of their residents and constitutes a public nuisance.
Consumer protection law violations: Some
governments have alleged that the companies violated laws
protecting consumers by concealing the hazards of lead-based
paint and misleading consumers and the public.
Strict liability: Many of the plaintiffs
have claimed that defendants are strictly liable (i.e. liable
without regard to fault). Strict liability can arise if a
company produces a product that is unreasonably dangerous
because it is designed defectively or does not carry adequate
warnings, or both.
Negligence: The plaintiffs also claim that
defendants were negligent, i.e., that they did not behave
reasonably under the circumstances. The negligence claims
are based upon the defendants’ failure to warn the public
about the dangers of lead-based paint, their failure to adequately
test the safety of their products, and their continuing production
and marketing of lead pigments when they knew (or should have
known) that they were hazardous.
Indemnity: Several of the governmental cases include
claims for indemnity, which would require the defendants to assume financial
responsibility for the plaintiffs’ past and continuing expenditure
of funds for lead-based paint monitoring, maintenance, detection, and
abatement, and screening and treatment of poisoned children.
Unjust enrichment: Several governments also
allege that the defendants have been unjustly enriched due
to their payment for expenses related to lead poisoning and
lead abatement. The governments have paid for these programs,
while the defendants have refused to assume responsibility
and instead have profited from the sale of lead pigments.
The governments claim that these profits should be made available
to deal with the public health crisis the defendants created.
Fraud and conspiracy: In most of the cases,
plaintiffs allege that fraud and conspiracy underlie the defendants’
Statutes of limitation do not bar suits by most states and
some counties and cities. For example, Texas law provides
that claims of the state and its political subdivisions, including
school districts, are not barred by certain statutes of limitation.
Principles of equity and fairness may require that statutes
of limitation be suspended in some circumstances. For example,
Santa Clara County has claimed that it was unable to discover
the claims raised in its complaint because defendants fraudulently
concealed and continue to minimize the problem. Not until
the late 1990s, when the county’s lead poisoning prevention
programs were funded, was it able to grasp the extent and
nature of the problem.
In any event, claims involving continuing or potential harm do not trigger
statutes of limitation until the harm has been eliminated. The public
nuisance claims, for example, will remain timely as long as potential
lead-based paint hazards exist. When the hazards have been abated, i.e.,
the paint has been safely removed, any applicable statute of limitations
would begin to run.
When states, counties, and cities sue the lead industry, they may rely
on principles of joint and several liability to establish that the conduct
of each of the defendants caused harm to the government entity. Under
this doctrine, a company may be held liable if it was a substantial factor
(not the sole factor) in causing the harm to the plaintiff. If a number
of defendants are held jointly and severally liable, each defendant legally
is responsible for the entire amount of the plaintiff’s damages
(although in practice, liability typically is apportioned among the defendants).
In the context of the suits against the lead industry, the
governments only need to prove that each lead pigment manufacturer
was a substantial factor in causing it to incur expenses related
to lead-based paint. Defendants also would be jointly and
severally liable if they are found to have engaged in a conspiracy
to conceal the hazards of lead-based paint.
When two or more parties work together to commit an unlawful act or to
commit a lawful act through illegal means, they have engaged in conspiracy,
which makes each party liable for the entire harm caused to a plaintiff
as a result of the conspiracy. The lawsuits allege that the lead companies
and their trade association conspired to conceal the dangers of lead-based
paint, to mislead the public regarding the hazards, and to aggressively
promote lead-based paint, despite their knowledge of its dangers. If the
plaintiffs succeed in proving conspiracy, the lead companies will be jointly
and severally liable for the damage, and the plaintiffs need not prove
that a specific defendant’s paint is responsible for their damages.
This would not be the first time the lead pigment industry would be found
to have conspired against the public interest. In 1953, the Federal Trade
Commission found that the lead pigment industry had violated federal law
by conspiring to fix prices.
The lawsuit initiated by Santa Clara County has been brought on behalf
of a class comprising all public entities in California that have incurred
medical, educational, or abatement costs stemming from lead-based paint.
Several counties and two cities have joined that lawsuit as plaintiffs.
Many of the recent cases have been filed by governmental entities, not
individual plaintiffs. Governments bear broad responsibility for protecting
public health and well-being, and are accorded expansive rights to fulfill
that duty. Accordingly, governments have standing to pursue certain causes
of action—such as public nuisance, equitable relief, and consumer
protection act violations—that may not be available to individual
Past cases by individuals have been hindered because it is nearly impossible
to pinpoint which of the defendants produced the lead pigment that caused
the plaintiff’s injuries. The governmental cases focus on the conduct
of the lead industry in promoting, selling, and distributing lead pigment
for use in and on homes. By focusing on the individual and collective
conduct of the defendants, the cases rely on joint and several liability
and conspiracy claims to hold the industry accountable for the widespread
harm it has caused.
Experience in the tobacco litigation may be instructive. For decades,
the tobacco industry appeared unassailable in court, as plaintiffs lost
case after case. It was not until significant numbers of states sued the
companies for the public health costs of tobacco that they came to the
negotiating table. It is true that industry will not back down easily,
given the potentially enormous liability at stake. However, as more states,
cities, and counties launch suits, the likelihood that the lead industry
will be held accountable for the damage it has caused will increase significantly.