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Unfair business litigation blames lead paint companies

Most people would agree that removing lead from the houses where California children live is likely a noble pursuit. After all, it only makes sense to safeguard our future by preventing health problems among the young generations. However, a recent ruling related to lead paints in California is being characterized as a massive business litigation failure, as three paint companies are being held responsible for remedying the lead paint problem.

Experts in the field compare the situation to a lawsuit that may have stemmed from a medical procedure that had previously been deemed necessary. For example, scores of young children's tonsils removed in previous generations because the existing body of medical evidence suggested that tonsillectomy was a helpful procedure. Now, though, physicians are discovering that tonsils should not be so quickly removed. In such cases, would the doctor be viewed as behaving wrongfully? Many of us would argue against that assertion.

Using that analogy, why should three paint companies be required to pay more than $1 billion to 10 counties in California to pay for the removal of lead-based paints that remain in millions of outdated homes? Business law experts say that an abuse of tort law is to blame for this unfair situation. Expert reports show that the dangers of ambient lead dust were not known until recently. The first recommendation against lead-based paints appeared in 1933, but paint companies voluntarily suspended the use of lead-based paint in 1955. The federal government did not even ban those substances in homes until 1978. Further, previous government standards were not nearly as strict as those existing today. This is because knowledge about lead-based paint have evolved significantly in recent decades.

The judgment against the paint companies in this case wrongfully postulates that public health officials knew the dangers of lead-based paint far earlier than they did. Further, it implicates the paint companies in wrongdoing even though they were simply following the law at the time the paint was sold. This wasteful business tort may have a serious effect on similar future cases, which would hold businesses liable for actions they took that were not deemed dangerous at the time.

Source: Forbes, "A California judge terrorizes business with an Orwellian tort travesty" Michael Krauss, Dec. 19, 2013

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