|
Since the 1970's, agencies within the U.S. Government (including the EPA and the Consumer Products Safety Commission) have recognized lead paint may lead to toxic levels of lead exposure. As American manufacturers stopped using lead paints (and other leaded products such as gasoline), efforts focused on remediation of older buildings that still wore their old lead paint. While recent attempts by municipalities to shift the cost of that remediation to paint manufacturers have mostly failed to date, the recent recall of Chinese toys due to possible lead paint hazards has created new ground for potential liability against American importers and distributors. However, for several reasons, this new iteration of lead paint litigation may fade.
Several recent decisions across the country dealt a blow to lead paint cases brought by municipalities. Various towns and cities sued manufacturers of lead paint on a theory of public nuisance, seeking damages for medical care and reimbursement for the cost of the paint. On June 15, 2007, the New Jersey Supreme Court ruled that manufacturers were not liable for harm caused by the flaking and peeling of lead paint-the condition that creates respirable lead dust-as opposed to the paint itself, which does not create respirable lead so long as it remains intact. In Missouri, the state high court ruled that manufacturers could not be held liable on a market share theory, but instead could only be subject to liability on proof linking particular lead paint on a building with a specific manufacturer. Both rulings are effectively the end of these sorts of public nuisance claims seeking damages for remediation of lead paint exposure-at least in New Jersey and Missouri. And in Ohio, the Supreme Court recently upheld a law limiting damages in public nuisance claims, a decision that will affect lead paint cases filed by several cities in that state.
California may be next to add to the developing lead paint jurisprudence. Recently, a class action suit was filed in California against toy maker Mattel, one of the many American toy companies who recently recalled its Chinese-manufactured products after it was revealed they may have been coated with lead paint. As part of its recall notice to consumers, Mattel offered to replace the recalled toys with a toy of equal or lesser value. This suit asks Mattel to additionally pay for medical testing and monitoring for all consumers of the recalled toys across the nation, not just California purchasers. Though the attorneys who filed the suit recently stated the tests for lead poisoning typically cost about $200, given that the number of toys recalled is in the million-plus range, even a giant like Mattel would be hard-pressed to simply agree to pay $200 million for testing, notwithstanding potential public image concerns.
California does permit plaintiffs exposed to toxic substances to collect medical monitoring costs even where they have not yet suffered an injury. However, despite California's reputation for generosity with personal injury plaintiffs, this suit (and others like it) may face several potentially insurmountable hurdles.
One procedural difficulty plaintiffs will face is class certification. The Mattel suit seeks to include every person in the nation exposed to one of the recalled toys. The breadth of the class creates difficult, perhaps class-defeating, choice of law issues. Each class member will likely be subject to the law of the state where he or she resides or was exposed. Yet the state laws differ materially with respect to the level of increased risk of disease required to support a medical monitoring claim, among other differences. This variation in applicable substantive law alone may warrant denial of certification of the class as currently conceived.
Additionally, California courts have discretion to refuse to take jurisdiction over nonresident class members from other states where doing so would require a California court to decide numerous factual and legal issues relating to injuries outside the state. Certainly that appears to be the case here. Thus, even if a California court found common issues to predominate such that the class could be certified, it could still refuse to do so based on the significant numbers of non-California plaintiffs involved.
Interestingly, removal of the case to federal court to take advantage of federal "mass tort" certification procedures (which might permit nationwide certification) is not likely an option for this case. At least one California district court rejected a medical monitoring case based on exposure to toxins alone. (Toxic Injuries Corp. v. Safety-Kleen Corp., 57 F. Supp. 2d 947 (C.D. Cal. 1999). It held that without any evidence the plaintiffs had sustained actual injury due to the exposure, there was no "injury-in-fact" being protected, and hence no standing to sue under the Constitution's limitation of federal court jurisdiction. Other federal courts have been similarly loathe to sanction medical monitoring claims.
A second hurdle that will likely make class certification difficult in the Mattel case is proof of exposure to lead necessitating lead testing. Not every purchaser (or user) of every Mattel toy was exposed to toxic levels of lead. The California Supreme Court has held that where proof of exposure cannot be done en masse, class certification is not appropriate in a medical monitoring case. (Lockheed Martin Corp. v. Superior Court (Carrillo), 29 Cal. 4th 1096 (2003).) Moreover, Mattel cannot be held liable for lead testing necessitated by other sources of lead exposure. Thus, Mattel will be entitled to investigate other possible sources of lead in each plaintiff's environment. These individualized determinations may form another basis for denying class certification.
Other difficulties in this case exist but will not likely become relevant until much later in this litigation. In the meantime, the new suit will be watched closely as a potential harbinger of what may come, not only in lead paint litigation, but for importers and distributors of foreign products that may bear hidden, potentially toxic defects.
| 
