Oct. 22 2018

A Surprise Environmental Health Victory at the U.S. Supreme Court

In an unexpected decision in mid-October, the U.S. Supreme Court refused to hear an appeal by three paint manufacturers, thus holding them responsible for lead contamination in thousands of homes in California. Decades in the making, the decision hinged in large part on historical research and court testimony by two Columbia Mailman School faculty.

Through a scholarly partnership beginning in the 1980s, David Rosner, professor of Sociomedical Sciences, and Gerald Markowitz, adjunct professor, have documented myriad instances in which industries knowingly profited from public health hazards. In a series of cases culminating in the recent victory, they provided expert testimony on what paint companies knew and when, and how internal corporate discussions showed they knew lead was dangerous while they marketed their products as safe. At low doses, lead exposure is linked to intellectual deficits; at high doses, seizures and death.

The professors first applied their historical analysis to a legal case involving lead paint in response to a call from the New York City Law Department. After settling a suit brought by parents living in public housing apartments with lead paint on the walls, the city wanted the paint companies to foot the bill. Rosner and Markowitz were recruited in 1995 for their historical expertise. “The industry dumped a roomful of documents on us, hoping to overwhelm us,” Rosner remembers. But with help from graduate students, the historians organized hundreds of boxes of materials dating from the first half of the 20th Century. What they uncovered confirmed their theory: while companies peddled their paint as a “healthful” product, behind closed doors and in trade association meetings and reports, the executives revealed they knew otherwise, discussing cases of lead poisoning that came from children touching, eating, and inhaling lead paint dust.

Despite this evidence, New York City dropped the case, realizing it lacked the legal resources available to the defendants. However, the accumulated documents would continue to play an important role, both for the historians’ scholarship and for subsequent court cases. Today, the documents are available along with millions of other industry papers at ToxicDocs.org, a searchable archive created by Rosner, Markowitz, and Assistant Professor Merlin Chowkwanyun.

A Public Health Legal Strategy

A few years later, Rosner’s and Markowitz’s research caught the attention of U.S. Senator Sheldon Whitehouse, then the attorney general of Rhode Island. Whitehouse was determined to sue the paint industry and recruited the professors to serve as expert witnesses. His novel legal strategy employed “public nuisance” doctrine to hold the companies responsible. The doctrine is typically applied to combat ongoing activities like the production of noxious emissions by a factory, not to correct past actions. Backed by historical evidence, Whitehouse sought “nuisance” damages not as payment for past wrongs, but to prevent future harm to children. “This was going to get the lead paint off the wall,” says Rosner. “Our argument was that public health is preventative, and what matters is stopping disease before it happens.”

One of the lead lawyers on the case, Ronald Motley, fresh from wresting a historic settlement from tobacco companies, told Rosner that their documents on the paint industry were more substantial than those used in the first three decades of the tobacco suit. Even so, Motley warned that the case against the paint industry wouldn’t be easily won. Indeed, the trial was the longest civil trial in Rhode Island history, taking four months. Rosner and Markowitz were on the stand for more than two weeks. The jury eventually ruled for the plaintiff, awarding $4 billion in damages. But after intense pressure from the industry and unsympathetic coverage in the New York Times and Wall Street Journal, the Rhode Island Supreme Court overturned the decision in 2008, ruling that the State couldn’t sue for damages against people who had not yet been harmed.

Back on the Case in California

Meanwhile, a similar case was underway on the other side of the country. Beginning in 2000, plaintiffs in California filed claim against three paint companies. The suit would grow to represent 10 cities and counties, including Los Angeles County and the city of San Diego, with a total population 25 times the size of Rhode Island. As the case proceeded, Rosner and Markowitz were each on the stand for the better part of three days. During testimony they presented several exhibits, including a 1930s Dutch Boy coloring book for children, used to highlight the hypocrisy of the brand’s maker, National Lead, known today as NL Industries. In 2012, a jury decided against the companies, awarding the complainants $1.5 billion, an amount later reduced on appeal to $400 million. A sizable portion of the 120-page decision referenced the history that Rosner and Markowitz had uncovered and later detailed in their books Deceit and Denial (2002) and Lead Wars (2014). Crucially, California’s Supreme Court upheld the use of nuisance laws as a tool to prevent public health injuries.

After losing their latest appeal earlier this year, the paint companies drafted a state referendum that would require the state to pay for lead cleanup. Disguised as an environmentally friendly policy, the proposal included language giving the companies immunity from nuisance laws. When the deception was uncovered by the Los Angeles Times, State Attorney General Xavier Becerra changed the name of the referendum from “The Healthy Homes and School Act of 2018” to one that included the phrase “Eliminates Certain Liability for Lead-Paint Manufacturers.” At that point, the paint companies pulled their referendum and started a process to negotiate a new settlement with the state instead of pursuing further litigation. But the companies reconsidered. Rosner believes the changing makeup of the Supreme Court may have played a role. Neil Gorsuch, whose mother, Anne Gorsuch, was appointed by the Reagan administration to dismantle the Environmental Protection Agency, was confirmed in 2017, soon to be followed by Brett Kavanaugh, whose father, Everett Kavanaugh, worked as a lobbyist for the cosmetics industry. In April 2018, the paint companies took their case to the highest court.

Rosner had feared the result would be a slam dunk for industry, but it seemed the companies overplayed their hand. On October 15, the U.S. Supreme Court declined to hear the case; consequently, the California decision stands. Moreover, the precedent set by this case laid the groundwork not only to hold paint companies responsible for damages elsewhere, but also create a framework for actions against other industries suspected of knowingly creating environmental hazards, including one suit underway targeting PCB maker Monsanto. 

“The decision was a total surprise,” he says. “We’ve been working for 25 years to see this day. I’m floating on a cloud.”