Nossaman Obtains Defense Verdict in Proposition 65 Case

Nossaman News Release

SAN FRANCISCO (July 24, 2007) – Today Nossaman Guthner Knox & Elliott LLP announced a victory on behalf of client Bondo Corporation in a Proposition 65 case involving automobile touch-up paints. The First District Court of Appeal handed Nossaman attorneys Patrick Richard and Deborah Beck another win with its affirmation of the trial court judgment they obtained in DiPirro v. Bondo Corporation. This is the first on-the-merits, rather than procedural or jurisdictional, Proposition 65 case to reach the Court of Appeal and result in a published decision.

The plaintiff in the case, a prolific Proposition 65 "citizen enforcer," alleged that Bondo "knowingly" and "intentionally" exposed users of its touch-up paints to toluene—a chemical "known to the State of California to cause reproductive toxicity"—without first providing a "clear and reasonable warning" within the meaning of the Health & Safety Code as Proposition 65 defines that concept.

"This is a very impressive victory for the litigation team here at Nossaman," said firm General Counsel Kurt Melchior. "Due to the unique nature of the statute, which provides little guidance on establishing when a warning label is or is not required, the Nossaman team had to both develop a methodology for showing that the amount of toluene the "average consumer" applying paint would be exposed to falls below acceptable levels, and convince the trial court to approve that methodology."

As a result, the published decision provides a roadmap for other Proposition 65 defendants to follow. The decision holds that because at its core a Proposition 65 enforcement action is equitable rather than legal, a plaintiff is not entitled to a jury trial. The 50-page appellate decision also establishes that a defendant seeking to prove that it is exempt from the warning label requirement is not required to show that no consumer using the product would be exposed to toxins at a level exceeding the state-issued safe harbor level. The court expressly rejected plaintiff's contention that warnings are required if any consumer uses the product in a manner that exceeds the acceptable level. The decision also establishes that the courts do not require rigid adherence to NIOSH test protocols but will instead permit defendant experts to modify those protocols where appropriate.

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