Law/Legal:
New Legal Tack on Public Hazardous Materials

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Posted:
22 July 2001

 
-------- Original Message --------
Subject: New Legal Tack on War over Lead Paint (Kelley)..
Date: Fri, 29 Jun 2001 10:35:42 -0500
From: Roy Beavers <guru@emfguru.com>
Reply-To: roy@emfguru.com
Organization: EMF-L List
To: undisclosed-recipients:;
 

...........From EMF-L..........

I agree with Libby.  The story below outlines a new and interesting approach to public health and safety litigation ......  It could certainly be applied to EMF/EMR as well.......!!!  While the case below is clearly in its earliest stages ... and the present judge is "talking" dismissal ... this kind of "precedent-building" formation of 'new law' requires a sticktoitivness that says:  If at first you don't succeed, try, try again......!!!

As guru has written before:   Society has now entered an era in which the potential for public health harm by fast moving technological/chemical discoveries and change ... coupled with the ruthless exploitation of those discoveries by purely profit driven industry that also controls much of the mass media......!!  The result is a public health challenge that cannot be successfully confronted ... by the legal/political system we now have......

The "existing" system is too slow.....  It has been influenced and shaped by decades of special interest lobbying ... in legislatures and political (White House) administrations and governor's mansions where the uninformed and/or disinterested public was not (IS NOT!!!) well represented!!!  The primary focus of governmental activity was not "the public good".....  It was/is -- currying the favor of the special interests.....

The public MUST come up with new approaches to protect itself from this (now epidemic) ruthless exploitation of the public's health and safety.....

The litigation alternative described below may have some promise........

Cheerio......

Roy Beavers (EMFguru)
roy@emfguru.com

It is better to light a single candle than to curse the darkness....

All that is necessary for the triumph of evil is for good men to do nothing.....
......Edmund Burke




 
-------- Original Message --------
Subject: SF Chronicle Article: New Tack on War over Lead Paint
Date: Thu, 28 Jun 2001 17:31:30 -0700
From: Libby Kelley <libby@energyfields.org>
To: roy@emfguru.com
 

Dear Roy,

This article in today's SF Chronicle is about lead paint litigation but the parallels between legal challenges on lead paint hazards and some pending legal claims in various State Courts on wireless communications technology hazards make it seem highly relevant. According to the article:

"The legal terminology public nuisance is often used in reference to petty individual acts and quality-of-life crimes. But the underlying statutory concept involves something very broad -- the unreasonable interference with a common right, resulting in some sort of harm to the public's health, safety, peace, comfort or convenience.  As such, the charge can be brought under state law to halt serious practices by individuals or businesses that have a major effect on entire communities and to compel extensive and potentially costly remediation."

It took decades before the evidence was undeniably clear of ham in the case of lead paint as a health hazard.  We cannot afford to risk an entire generation in waiting for the final word on wireless communications as a health hazard.

Libby Kelley
 

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/06/28/BU236218.DTL

New tack in war over lead paint

Scott Winokur, Chronicle Staff WriterThursday, June 28, 2001

San Francisco and 11 other California cities and public agencies have returned to court in their 15-month crusade against U.S. companies they accuse of selling poisonous lead paint through the mid-1950s, long after it had been banned by European nations.

Responding to a San Jose judge's June 1 ruling against them on an important legal issue, the persistent plaintiffs have filed an altered version of their complaint -- the third. The newly amended complaint, made public June 21, clarifies the plaintiffs' contention that, among other allegedly illegal acts, the companies' behavior constituted a "public nuisance." It accuses the companies of "engaging in a massive campaign" to promote the use of lead paint in homes and buildings, and on furniture and toys, "despite medical reports indicating that children were dying and suffering from serious injuries from lead."

The companies also tried to discredit legitimate research linking lead and ill health, and engaged in a campaign to block regulation, according to the plaintiffs.

The companies, which include the nation's top paint manufacturers, deny the charges, noting that they voluntarily stopped making lead paint more than two decades before it was banned by the federal government in 1978.

They also say that courts elsewhere in the nation consistently have sided with them in similar actions brought by other governmental legal authorities.

While stopping far short of granting the total dismissal the paint companies have sought, Santa Clara Superior Court Judge Gregory Ward has expressed doubt about the validity of the public-nuisance claim, one of several different claims in the suit, brought by the California public entities.

His ruling and remarks made from the bench at a court hearing May 31 show he is clearly inclined to accept the chemical companies' argument that the case really involved a products-liability claim.

Such a claim would be easier for the companies to defend against and less likely to result in the sweeping remedies and damages the cities, counties and agencies seek if they win. Ward, however, invited the plaintiffs to have another bite of the apple -- their fourth, including a suit filed in March 2000 that was later replaced by the current suit.

The legal terminology public nuisance is often used in reference to petty individual acts and quality-of-life crimes. But the underlying statutory concept involves something very broad -- the unreasonable interference with a common right, resulting in some sort of harm to the public's health, safety, peace, comfort or convenience.

As such, the charge can be brought under state law to halt serious practices by individuals or businesses that have a major effect on entire communities and to compel extensive and potentially costly remediation.

The specific intent of the newly amended complaint was to emphasize the plaintiffs' interest in abatement of what they consider a profound public- health problem, according to Bruce Simon, a Burlingame attorney.

Simon's firm -- Cotchett, Pitre & Simon -- is assisting most of the plaintiffs, including Oakland and Alameda, Santa Clara, Santa Cruz, Solano and Kern counties.

"We're trying to create a clear dividing line," Simon said Tuesday. "Abatement takes care of the ongoing problem by having the problem fixed, as opposed to damages, which pay people back for the cost they've already incurred."

A products-liability claim, in contrast, only addresses the issue of costs - - it doesn't seek abatement, he said.

But an attorney for one of the defendants, James Speyer of Los Angeles, said "their third try suffers from all the problems" of its predecessors. Speyer represents Arco, successor to the former Anaconda Lead Product and International Smelting and Refining companies. A response to the third amended complaint is due by late July. Speyer said it will at minimum seek dismissal of the latest version of the public-nuisance claim.

Plaintiffs said they remain confident of ultimate victory, despite the dismal track record of similar suits elsewhere.

"Our lawsuit has gotten further than many of the other suits. We think we're in a good position to prevail," Deputy Santa Clara County Counsel Kathryn Zoglin said. Countered Speyer: "If anything, plaintiffs have 'progressed' backward, because the judge keeps cutting out claims."

Besides Arco, defendants are Sherwin-Williams, the nation's largest paint company; Conagra Grocery Products, successor to the Fuller Paint Co.; E. I. du Pont de Nemours; O'Brien Corp; the Glidden Co.; SCM Chemicals; NL Industries; and the Lead Industries Association.

San Francisco officials say the city in the past 10 years has treated about 600 neurologically impaired children for lead-paint poisoning -- typically residents of low-income areas with aged housing stock in disrepair. E-mail Scott Winokur at swinokur@sfchronicle.com.




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