Pennsylvania County's Lead Paint Lawsuit Sent Back to State Court

A lawsuit filed by Montgomery County, Pa., over lead-based paint in residential communities has been removed from federal court and sent back to state court, according to The Legal Intelligencer. The county alleged defendants in the case engaged in "ongoing public nuisance" by actively proliferating lead-based paint in a residential community and argued the issues of the case implicated federal law.

The judge said that Montgomery County’s lawsuit was devoid of federal claims.

“Notably, plaintiff’s amended complaint does not explicitly allege any cause of action arising under federal laws or the United States Constitution, invoke any federal cause of action, or explicitly challenge the constitutionality of a statute or the actions of a federal entity,” Alejandro said. “Instead, plaintiff’s amended complaint asserts only a state-law declaratory judgment claim for nuisance. Notwithstanding, defendants argue that removal of this action was proper because plaintiff’s claim implicates substantial federal issues in that liability turns on the construction and application of federal regulations and/or standards pertaining to lead paint. Defendants’ argument is, however, misplaced.”

The defendants argued that mention in the complaint of a federal regulation on abatement and the Pennsylvania Lead Certification Act’s and its federal definitions of “abatements” therein gave the court jurisdiction.

Montgomery County's lawsuit alleged the "near-ubiquitous prior use and availability" of lead-based paints and pigments even after they were banned in 1978 continues to plague residents in the county. Two other counties in the state filed lead-paint lawsuits invoking the theory of "public nuisance."

Counties in California recently had success in their lawsuits alleging paint companies created a "public nuisance" by promoting lead paint when the companies "knew or should have known" lead paint was hazardous. Sherwin-Williams and several other companies are on the hook to pay $400 million for lead-paint remediation in the state. Three residents in Wisconsin had success in lead-paint-related suits, claiming paint companies were responsible for lead poisoning the three men suffered as toddlers in their homes.