On July 16, 2018, Sherwin-Williams (“SW”) filed a petition for a writ of certiorari with the United States Supreme Court seeking to overturn a $1.15 billion verdict levied against it and two other companies, ConAgra Grocery Products Co. and NL Industries Inc., involved in manufacturing and marketing of lead paint used in California homes during a time when lead paint was lawfully permitted to be used in residential interiors. The basis of the petition is that SW’s First Amendment and Due Process rights were infringed by California when it imposed tort liability for truthfully promoting a lawful product that it finds to be hazardous, and that California imposed a retroactive and grossly disproportionate public nuisance liability based on decades-old promotions without evidence that consumers relied on those promotions or that SW’s lead paint is in any residence.
In 2014, a California trial court (unreported but available at 2014 WL 1385823) determined that SW’s promotion of its lead paint product was misleading because it implied the paint was safe. The disputed promotion was a 1904 ad which ran in Los Angeles Times and San Diego Union containing a message “Put S.W.P. on your house and you will get satisfaction and save money every time.” SW was also found liable because it contributed a total of $5,000.00 between 1937-1941 to a trade association to promote “better paint,” including lead paint. Ultimately, the companies were ordered to pay a massive $1.15 billion into a state fund intended to be utilized to remove health hazards posed by lead paint in California homes.
On November 14, 2017, the California Court of Appeals modified the judgment (reported at 17 Cal.App.5th 51) to hold that the companies should only be liable for lead-paint usage before 1951 because there was insufficient evidence to establish that the defendants had promoted lead paint for interior use after 1950. This concession could potentially reduce damages between $409 million and $730 million. However, the appeals court upheld the substance of the ruling, and referenced the 1904 ad as misleading. On February 14, 2018, the California Supreme Court denied review.
Accordingly, SW filed a petition for a write of certiorari with the United States Supreme Court on July 16, 2018 contending that its First Amendment and Due Process rights were infringed by California when it imposed tort liability for truthfully promoting a lawful product that it finds to be hazardous, and that California imposed a retroactive and grossly disproportionate public nuisance liability based on decades-old promotions without evidence that consumers relied on those promotions or that SW’s lead paint is in any residence.
Whether this case is taken up by the Supreme Court, and subsequently how the high court ultimately rules on this matter, could have a dramatic impact on future cases. This case presents a “super tort” theory whereby a governmental agency is targeting manufacturers of a product because of a belief that the participation of states and cities in a lawsuit brings credibility and a ‘moral authority’ to the cause. In nearly every other instance, this theory has failed. With the trial and appellate victories in this case, however, a new crop of lawsuits has appeared, including suits against fossil fuel producers over the sales and promotion of oil, gas and coal.