The Nuisance Of Alarmist Litigation

REUTERS/Carlos Jasso

Julie Gunlock Julie Gunlock is director of Independent Women’s Network
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Nuisance litigation — the nice way of saying “frivolous lawsuits” — can be long, tedious, and quite expensive to defend. Many cases are so laughable that judges just throw them out. Yet, other, more well-financed cases continue to pop up against cities, businesses, manufacturers, and individuals.

Much time and many resources have been diverted from more productive uses to contend with public nuisance litigation. Yet, there’s another victim: parents who hear about this type of litigation and assume there’s reason to worry about the health and safety of their children. That’s the real nuisance.

Consider the ongoing litigation against companies that long ago sold lead-based pigments sometime used in residential paints (which has been out of the marketplace since the early 1970s). In one California case, plaintiff’s lawyers argued that because lead-pigmented paint still exists in some residential buildings, a public nuisance exists. In an unprecedented decision, the judge ruled in their favor, saying that all lead paint on the inside or outside of every residential building in ten of the largest California cities and counties is a “public nuisance.” He then ordered three former white lead pigment producers to pay to inspect every residence built before 1981 and then to abate or remove the lead paint.

Yet, this is in direct opposition to what public health officials advise on lead paint. Instead of stripping it off walls, which could then create an airborne lead dust biohazard, officials advise keeping the lead paint intact under other layers of paint, and applying regular coats of paint to ensure the lead paint remains underneath. Lead pigments cannot migrate through layers of non-lead paint; a hazard arises when owners negligently allow paint to flake, peel, and chip off. The National Center for Healthy Housing (NCHH) even states that living in a house with lead paint is fine as long you maintain the paint and do basic house cleaning and upkeep to your house — something most mothers do on a daily basis.

Public health officials know that lead paint can’t hurt anyone when it’s buried under multiple layers of newer paint. They also know that scientific studies show that lead exposure may come from lead particles in soil either blown into homes through open windows or carried into the home by a person’s own feet — not from intact paint on the walls. Yet, if the court has its way, people would face new health risks as layers of paint are removed and scraped off — leading to leaded dust and chips.

Sadly, what parents don’t hear is the good news. According to the CDC’s National Health and Nutrition Examination Survey (NHANES), Americans show consistent declines in blood lead levels in every segment of the population. Even President Obama urged caution about fears of lead exposure, reminding the citizens of Flint, Michigan after their water supply was found to have elevated levels of lead that “… it wasn’t until the ‘80s where we started banning lead in paint, lead in toys, lead in gasoline,” adding “…if you are my age, or older, or maybe even a little bit younger, you got some lead in your system when you were growing up…”

That’s a message parents need to hear.  Too bad our legal system so often pushes in the wrong direction and contributes to a culture of needless alarmism. Parents deserve better and Californians deserve a legal system that distinguishes between a naked grab for money and real cases worthy of attention.

Julie Gunlock is a mom of three and a senior fellow at the Independent Women’s Forum