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AB-2074 Damages: lead-based paint.(2017-2018)

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Date Published: 05/17/2018 09:00 PM
AB2074:v97#DOCUMENT

Amended  IN  Assembly  May 17, 2018
Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2074


Introduced by Assembly Member Bonta
(Coauthors: Assembly Members Bloom, Carrillo, Chiu, Jones-Sawyer, Kamlager-Dove, Limón, McCarty, Mullin, Quirk, Mark Stone, and Ting)
(Coauthor: Senator Wiener)

February 07, 2018


An act to add Chapter 3 (commencing with Section 3362) to Title 2 of Part 1 of Division 4 of the Civil Code, relating to damages.


LEGISLATIVE COUNSEL'S DIGEST


AB 2074, as amended, Bonta. Damages: lead-based paint.
Existing law authorizes a person who suffers a loss or harm to person or property from the unlawful act or omission of another to recover from the person at fault money damages.
This bill would allow the injured party, in any action to recover damages for injury to person or property caused by lead-based paint, to establish a prima facie case that a particular party lead paint pigment manufacturer is the cause of the injury if the injured party proves by a preponderance of the evidence that a particular party produced, the lead paint pigment manufacturer sold, distributed, or promoted in California either the type of lead paint pigment that caused the injury, injury or a product containing the type of lead paint pigment that caused the injury, and would shift the burden of proof to that particular party the lead paint pigment manufacturer to prove by a preponderance of the evidence that it did not produce, sell, distribute, or promote the lead paint pigment that caused the injury or a product containing the type of lead paint pigment that caused the injury during the relevant time period or in the geographical market in which the injury occurred. The bill would make each party lead paint pigment manufacturer jointly and severally liable if more than one party that produced, sold, distributed or promoted lead paint pigments lead paint pigment manufacturer is found liable for an injury to person or property caused by lead-based paint. The bill would expressly make these provisions retroactive. The bill would also state various findings and declarations of the Legislature related to these provisions. The bill would provide that its provisions are severable.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares the following:
(a) Lead is highly toxic and causes serious health harms that are irreversible and cumulative. As the American Academy of Pediatrics explained in 2016, “[n]o treatments have been shown to be effective in ameliorating the permanent developmental effects of lead toxicity.”
(b) Government agencies and health organizations, including the federal Centers for Disease Control and Prevention, the World Health Organization, and the American Academy of Pediatrics, agree that there is no safe level of lead exposure.
(c) Young children are especially susceptible to lead due to their smaller size, the vulnerability of their developing nervous systems, and their high rates of lead absorption.
(d) Each year, the State of California identifies tens of thousands of young children in California whose health has been irreversibly harmed due to lead exposure and these children represent the minimum number of children in California whose health has been irreversibly harmed due to lead exposure.
(e) The economic costs of childhood lead exposure are substantial. These costs include: (1) health care costs associated with treating health problems caused by lead exposure; (2) special education costs incurred due to slower development, lower educational success, and behavioral problems caused by lead exposure; (3) loss of tax revenue due to decreased lifetime earnings resulting from decreased intelligence caused by lead exposure; and (4) costs of criminal activity connected to lead exposure. According to the American Academy of Pediatrics, the estimated annual cost of childhood lead exposure in the United States is $50 billion.
(f) The substantial economic costs of childhood lead exposure fall disproportionately on the state and local governments in California. Because young children who suffer from lead exposure are often poor, their health care and special education costs are typically borne by the state and local governments. Likewise, many of the economic costs of criminal behavior closely connected to lead exposure are shouldered by the state and local governments. Finally, the costs to the state and local governments in California from childhood lead exposure are exacerbated by the loss of tax revenues due to loss of income associated with childhood lead exposure.
(g) Studies indicate that lead-based paint is the source of approximately 70 percent of childhood exposure to lead in the United States, including California.
(h) Virtually all government agencies, scientists, and public health officials agree that lead-based paint on residential surfaces is the predominant source of lead exposure in young children.
(i) Based on extensive evidence presented at trial, a California judge in 2014 found that certain lead pigment paint manufacturers caused lead-based paint to be applied on certain residential surfaces by promoting that paint for use on those surfaces even though they knew about the serious health harms to children that would result (Superior Court, Santa Clara County, No. CV788657).
(j) A California appellate court unanimously affirmed that finding by the judge in 2017 (People v. Conagra Grocery Products Company (2017) 17 Cal.App.5th 51).
(k) Although at least tens of thousands of young children in California continue to suffer serious and irreversible health harms due to their ingestion of lead-based paint each year, these children are unable to identify the precise manufacturer of the lead paint pigment they ingested due to the number of manufacturers, the passage of time, and the loss of records.
(l) As a result, these children are unable to establish causation under traditional common law tort principles.
(m) Recognizing that this would exempt lead paint pigment manufacturers from liability even though they likely contributed to the actual injury to these children and would unfairly shift the cost of the injury to the innocent child, the Wisconsin Supreme Court in Thomas ex rel. Gramling v. Mallett ((2005) 285 Wis.2d 236) applied a risk contribution theory of liability to injuries caused by lead-based paint.
(n) The reasoning of the Wisconsin Supreme Court in Thomas solely as applied to injuries to person or property caused by lead-based paint is both fair and appropriate and should be applied in California.

SEC. 2.

 Chapter 3 (commencing with Section 3362) is added to Title 2 of Part 1 of Division 4 of the Civil Code, to read:
CHAPTER  3. Lead-Based Paint

3362.
 (a) In any action to recover damages for injury to person or property caused by lead-based paint, the injured party may establish a prima facie case that a particular party lead paint pigment manufacturer is the cause of the injury if the injured party proves by a preponderance of the evidence that a particular party produced, the lead paint pigment manufacturer sold, distributed, or promoted in California either the type of lead paint pigment that caused the injury. injury or a product containing the type of lead paint pigment that caused the injury.
(b) If the injured party establishes a prima facie case of causation under subdivision (a), the burden of proof shall shift to the particular party that produced, sold, distributed or promoted the type of lead paint pigment that caused the injury lead paint pigment manufacturer to prove by a preponderance of the evidence that it did not produce, sell, distribute, or promote the lead paint pigment that caused the injury or a product containing the type of lead paint pigment that caused the injury during the relevant time period or in the geographical market in which the injury occurred.
(c) If more than one party that produced, sold, distributed or promoted lead paint pigments lead paint pigment manufacturer is found liable for an injury to person or property caused by lead-based paint, each party lead paint pigment manufacturer shall be jointly and severally liable.
(d) The provisions of this section are made expressly retroactive.

SEC. 3.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.