Proposition 65 Environmental Investigation:

The Story:

In a 2000 Proposition 65 case, our firm's meticulous investigation helped the plaintiff's prove damages and win their verdict.

The Case:

California's Proposition 65, "The Safe Drinking Water and Toxic Enforcement Act of 1986", regulates substances that cause cancer or birth defects or other reproductive harm. The first portion of Proposition 65 prohibits businesses from knowingly discharging listed substances into drinking water sources, or onto land where the substances can pass into drinking water sources. The second portion of Proposition 65 prohibits businesses from knowingly exposing individuals to listed substances without providing a "clear and reasonable warning". The law requires a specific wording depending upon the type of chemical involved, and, as important as the language, is the placement and size of the font required by law.

Stuart v. Consumer Paint Products, et al., filed in San Luis Obispo County in 2000, was a case we worked on regarding the proper Proposition 65 warnings placed on cans of One-Shot Paint, a popular auto detailing paint used in auto painting because its lead content made it highly adherent. An Illinois manufacturer, Consumer Paint Factory, manufactured, labeled and shipped the paint into California for retail sales to the public. The paint sold in over 40 paint specialty shops, such as sign painting shops throughout California, from Eureka to National City. Consumer Paint Factory had been in violation of Proposition 65 for several years with unfulfilled promises of compliance with the Attorney General mandates regarding the size and placement of the warning labels on One-Shot Paint.

Because damages in Proposition 65 litigation are often awarded based upon the concept of the "daily appearance" to the public of a particular defectively labeled product, this translates into how many cans of a particular product sat on shelves for how many days from the date of receipt by the store, until the date of sale. In order to assist the plaintiff, we counted every can of paint in each of the 40 stores in which it was sold and compiled a list by product color (different chemicals) and batch dates. Our first count was done without notification to any of the stores. We engaged in a strictly visual count of the cans, with appropriate recorded verbal notations.

As a trial date was set, we returned with subpoenas and reviewed the records of each of the stores in question, adding to our growing compendium of knowledge regarding how many cans of paint had been present in California since the date of initial violation (5 years). Based on a daily appearance fine rate of $2500 per day per can, the potential penalties approached $92 million dollars.

At trial, Nic Smith testified as to the overall interviewing and information gathering protocols followed, the worksheets that were utilized, the copies of records that were made, copies of notes of interviews and the internal auditing done by Nic and three other investigators. Each of the other investigators also testified as to the individual audits they had conducted.

The plaintiff's won the verdict. The trial judge, however, substantially lowered the final award.

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