Pennsylvania Record

Wednesday, February 19, 2020

Judge won't let Sherwin-Williams block lead paint litigation initiated by private lawyers hired by counties

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By Charmaine Little | Oct 24, 2019


PHILADELPHIA - On Oct. 4, the U.S. District Court for the Eastern District of Pennsylvania dismissed a lawsuit filed by Sherwin-Williams against the County of Delaware and related parties. Sherwin Williams requested a declaration that threats of a lawsuit against it violate a number of the paint company’s constitutional rights.

The County of Delaware was sued along with public officials John P. McBlain, Colleen P. Morrone, Michael Culp, Kevin M. Madden and Brian Zidek. Sherwin Williams claimed that there was public information that suggested the defendants would be suing Sherwin Williams over the presence of lead paint - a once-popular tactic around the country that found success in California.

But the court said as it granted the defendants’ motion to dismiss, “The purported dispute between plaintiff and defendants ‘is contingent upon events that may not occur at all or may occur differently than anticipated." 

The court also said that Sherwin-Williams failed to point out a principle of law that would allow it to be immune in a possible state court lawsuit when it filed its case via the Declaratory Judgment Act.

It reiterated that the whole lawsuit is based on events that haven’t occurred, and might not ever happen.

In its lawsuit, Sherwin-Williams said that details in public filings, media reports and statements revealed that the county, had either retained, or is in the process of retaining, private counsel in order to sue it to pay for the inspection and abatement of lead paint.

The company said the private lawyers want money, not justice, and should not be eligible to represent public bodies.

The instant case considers the issue of “public nuisance,” rejected in similar lead paint cases in several states, like Ohio and Rhode Island, but was received favorably by California courts in a lawsuit that lasted 18 years.

A trial court in 2013 found the three companies to be responsible for the lead-based paint in houses built before 1981. An appeals court largely upheld that decision, though narrowing it to those constructed before 1951. The Supreme Court of California refused to review the lawsuit, leading to its appeal to the U.S. Supreme Court.

But, the U.S. Supreme Court decided not to take up the case last Oct. 15. 

In Pennsylvania, Montgomery County’s lawsuit was filed just 11 days before the SCOTUS decision, and Lehigh County’s contract with Anapol Weiss stipulates a contingency fee for the firm of 33.3 percent.

It is that same one-third contingency fee that Sherwin-Williams says is at the heart of the motivation behind the current legal wranglings.

“Their financial incentive may explain why counsel has solicited the County to pursue litigation rather than public policy alternatives; defined the purported public nuisance in the broadest way possible, even though Pennsylvania law precludes such a claim; identified as defendants companies with the 'deepest pockets,' regardless of these companies’ actual contributions to the presence of lead in the County,” Sherwin-Williams wrote earlier this year.

Judge Nitza I. Quiñones Alejandro ruled on the case.

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