Painting the Town . . . with Lawsuits

Officials in Oakland and San Francisco have joined other California counties and municipalities in a lawsuit against eight U.S. paint and pigment manufacturers, the Lead Industries Association, and “up to 50 fictitiously named companies.” The suit, based on lead paint exposure among children, is akin to proceedings launched more than a year ago by the State of Rhode Island.

Before addressing the serious but often misunderstood issue of blood lead levels, it is important to note the very special attribute of this suit: local governments, not injured children or their parents, are the plaintiffs in this case. Imagine a hypothetical two-part “Q & A” session devoted to this lawsuit.

Part One goes thusly: Is the cities’ claim that their property or personnel were damaged by lead paint? Do they claim that their mayors, poisoned by lead, made decisions that were financially disastrous? The answer to both these questions is “no.”

Part Two now begins. Law students know that under the common law of torts only direct victims can sue wrongdoers, except in one case. One “indirect victim” who can sue is an insurer that indemnified the direct victim and thereby acquired the right to sue a tortfeasor to recover what the insurer had paid. Has the city acquired the injured child’s rights through subrogation?

Again, the answer is “no.” The cities are suing to recoup their own expenses for the medical care, “special education,” and “abatement” (removal of paint) they have offered to citizens who have elevated levels of lead in their blood.

As I have pointed out elsewhere apropos the firearm and tobacco lawsuits, so-called “recoupment” litigation by government flies in the face of centuries of Anglo-American common law. Recoupment litigation uses tort law, which is a private common law mechanism of corrective justice arising from one person’s wrongful harm to another, to achieve taxation, which is a public allocation of social costs. But taxation, like all public law, requires a distinctive legislative process. Recoupment litigation is taxation without legislation.

Governments have, for several reasons, no right of action in tort to recover social expenditures associated with high blood lead levels. To see this, let’s look more closely at the claim that Oakland and San Francisco are somehow suing as insurers on behalf of injured children. If this were the case, the cities’ suit would be no stronger than would be the children’s tort action against paint manufacturers. Small wonder that the cities have not asked for, obtained, or even claimed the right to sue as insurers.

For the simple fact is that each child’s suit against paint manufacturers would likely fail for several reasons: the suits do not link any individual paint company to the injuries; they do not establish “proximate causation;” and last but not least, they are not based on the manufacturers’ wrongful behavior.

This is why Oakland and San Francisco declined to sue in the children’s place. Instead, they declare that paint manufacturers somehow have directly injured the cities. But how have the cities been directly injured? Hint: return to Part One of the Q&A. The cities haven’t been hurt directly at all! If the cities’ legal theory looks circular, you’ve learned your torts lesson.

The cities’ suit is not only based on bad law; the facts don’t help either. During the past two decades, average blood lead levels for American children have fallen over 90 percent, largely as a result of the elimination of lead from gasoline and from food and food containers. Unlike those two sources, lead paint has never been a universal poison. It is intrinsically hazardous only to painters – who once upon a time inhaled clouds of lead dust when mixing paint and when dry-sanding lead-painted walls.

Even the EPA agrees that lead paint, if it is well-maintained and intact, typically poses no health risk. Some children have eaten dust from paint chips that have fallen to the ground in poorly repaired and ill-maintained homes. Those poor maintenance practices are not the paint companies’ fault. And interior house paints have contained little or no lead since the mid-1950s because of voluntary industry action, which was taken well before the 1978 federal ban on residential lead pigment.

The cities allege that a conspiracy of lead paint manufacturers hid the truth from them until 1999, so they couldn’t sue before then. No evidence supports this astounding claim.

Throughout the 1950s, Lead Industry Association official Manfred Bowditch heroically disseminated knowledge about lead paint hazards when used on cribs and toys, and inside dilapidated housing. Baltimore, a main focus of Bowditch’s efforts, publicized the risks of paint chips in run-down buildings in 1949.

In 1999, a Maryland court dismissed a conspiracy suit against paint companies with the finding that there was “no evidence whatsoever” that manufacturers “concealed any studies, altered any documents or misrepresented any finding.” Where have California cities been these last 50 years?

Today, many affected children (i.e., those with blood lead levels exceeding current Centers for Disease Control and Protection guidelines, which incidentally are lower than the average urban child’s blood lead levels of the 1960s) have absorbed lead-contaminated soil, not paint. Lead in soil has many sources, including gasoline as indicated above; no proximate causation of this contamination by lead paint can be established. To repeat, the most severely affected children have consumed paint chips. But that can be avoided through proper hygiene, home maintenance (including re-painting) and other abatement (like drywall application).

No causal wrongdoing can be proven against paint manufacturers. Statutes of limitation have in any case long since run. And the identity of manufacturers of each can of lead paint is unknown, which is why “fictitious defendants” are being sued; they are added to the case as a way for city attorneys to claim damages according to the market shares of hundreds of companies that manufactured lead paint decades ago, when it was a legal product not intrinsically dangerous to consumers.

These suits, like the tobacco and firearm recoupment actions, are thinly disguised shakedowns. In each case the cities hope the threat of massive lawyers’ bills will convince the defendants to pay the entire social cost of local government programs, even though no tax law has ever been passed compelling them to do so.

But the juries deciding these cases are not elected officials with the mandate to impose taxes, and public taxation is not within the common law’s purview. Let’s hope that a courageous judge throws out these lawsuits as quickly as paint dries.