Document wD0B6bwMv8qERaE9N5E7x2NRE

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ______________________ x THE CITY OF NEW YORK, et al. : Plaintiffs, -against- LEAD INDUSTRIES ASSOCIATION, INC., et al.. Defendants. x Index No. 14365/89 IAS Part 39 \ (Justice Freedman) AFFIDAVIT OF GEORGE FALKENBERC. STATE OF NORTH CAROLINA COUNTY OF CARTERET ) ) ss: ) George Falkenberg, being duly sworn, deposes and says: 1. 1 currently live at 110 Mclnnes Drive, Route 3, Pine Knoll Shores, North Carolina. I worked with The Sherwin-Williams Company from 1934 through December 1979, but for my service in the United States Air Force during World War II. I have personal knowledge of facts stated in this affidavit. 2. I joined Sherwin-Williams as a laboratory assistant testing raw materials in the Chicago research laboratory in 1934. I remained a laboratory assistant until December 7, 1941, when I joined the Air Force. After my service during World War II, I returned to SherwinWilliams in 1945 as a sales clerk in Chicago for the Pigment, Colors and Chemicals Division ("PC&C"). This Division made and sold many kinds of inorganic and organic paint pigments. dyes and other chemicals. During this time (1945-1947), there were only a few isolated sales of white lead pigment to small paint companies for their use in government specification, exterior paints. In 1947,1 transferred to Philadelphia as a salesman for the PC&C Division. In 1965,1 became an assistant sales manager for the Eastern Division and moved to New York City. In 1968,1 transferred to Cleveland and became planning manager for pigments. I transferred to Greensboro, North Carolina to become manager of the Sher-Dye Division in 1974, and retired from the Company in 1979. 3. Sherwin-Williams only plant making white lead carbonate was in Chicago. This white lead plant was relatively small and, I belidve, was not sufficient to meet even all of Sherwin-Williams' needs for white lead carbonate. The white lead plant was shut down soon after World War II. Sherwin-Williams was always a small producer of white lead and did not push its sale. I cannot recall any advertising by Sherwin-Williams of its white lead pigment. Sherwin-Williams' advertising focused on its sale and marketing of ready-mixed paints. 4. By the 1930's, when I joined Sherwin-Williams, I know of no Sherwin-Williams interior residential paints containing white lead pigment that were still being made and sold. I recall no use of white lead pigments in Sherwin-Williams' interior residential paints after I began with the company in 1933, even though I have been told that formula cards of some paints that contained white lead indicated exterior or interior use. To my understanding, by that time white lead pigments were intended for exterior use. Sherwin-Williams principally used lithopone at that time and, as it became technically feasible, titanium dioxide pigments in its interior residential paints. 5. The preparation for the war effort began to affect the paint industry by 1938-39. Oils and resins for oil-based paints were in short supply during the World War II period, and 2 Sherwin-Williams manufactured more oil-free water emulsion, he,, latex, paints during that time period. In the early 1940's, Sherwin-Williams introduced Kem-Tone interior latex paint and later Kem-Glo. These interior paints used new technology and did not have lead pigments.i Sherwin-Williams heavily advertised Kem-Tone and Kem-Glo in many extensive ad campaigns. They covered well, including wallpaper. They became very popular to homeowners because they were easy to apply, easy to clean, quick to dry, and free of odor. These paints helped to launch the do-it-yourself paint market, which was practically non-existent in earlier years. 6. To my knowledge, Sherwin Williams did not promote or advertise lead pigments for use in interior residential paints during or after the 1930's. Before the introduction of KemTone, the Company offered and promoted in the 1930's many interior residential paints, which did not have white lead pigments, such as Flat-Tone, Enameloid and Semi-Lustre. SherwinWilliams took a business risk in relying so heavily on and promoting its new latex paint, since improper use by customers and poor formulations by other paint companies, such as DuPont, caused many notorious latex and water-based paint failures in the 1940's and 1950's. These well-known paint failures caused consumers, painters and manufacturers to be reluctant to change away from traditional oil-based paints. Master painters and .contractors were also not convinced then to use latex or water-based paints with titanium dioxide pigments. 7. Lead pigment did not work well in latex paints because it was too heavy, did not mix well in the emulsion, and settled in the can. Sherwin-Williams, therefore, preferred using zinc oxide or titanium dioxide pigments (especially titanium dioxide, which was the lightest and fluffiest of the pigments) instead of white lead pigment in its latex paints. Zinc oxide alone produced a paint film that was too brittle. 3 8. By World War II, Sherwin-Williams also relied almost exclusively on zinc oxide and titanium dioxide pigments for its oil-based paints. As with latex paints, white lead tended to settle to the bottom in the paint can. Both zinc oxide and titanium dioxide were whiter than leal pigment, and covered over earlier paint layers better than the more transparent white lead pigment. White lead was also more expensive to use than zinc or titanium dioxide because it was bulkier to store and heavier to transport, and it required more coats because of its poor opacity. Therefore, by at least the late 1930's, 1 know of no interior paints using lead pigment because it was an impractical and expensive pigment compared to zinc and titanium dioxide. 9. Sherwin-Williams manufactured white lead carbonate only in its Chicago white lead plant. Because of high transportation costs, more lead pigments were typically sold close to the plants at which they were made than were shipped to distant cities. To the best of my knowledge and recollection, Sherwin-Williams sold very little of its pigment and used almost all of its lead pigment production in its own products. It used white lead pigment during the 1930's and thereafter, principally in military, railroad, industrial, marine, and other non-residential paints. The World War II period was an unusual time for paint formulation and manufacture because raw materials were often in short supply, including linseed oij and titanium dioxide. A company could never be certain of or rely on the availability of any raw material, and much paint and raw materials were directed to military use. 10. Sherwin-Williams and other paint manufacturers continued to use lead pigments in exterior paints after the 1940's because of technical necessity. Lead pigments were needed in exterior paints for durability and adhesion. Lead pigments provided flexibility to exterior paint film. The notorious failure of DuPont's anatase titanium dioxide latex exterior paints after 4 World War II, which rapidly chalked and washed away, cautioned paint manufacturers, painters and consumers against using exterior paints without lead pigment. . \ 11. Lead pigments, in particular Sherwin-Williams' production of leaded zinc oxide during and after the 1940's, were intended for use in exterior paints. Likewise, white lead in oil was intended and expected to be used as an exterior paint. This was common practice then. I attended meetings of paint manufacturers in New York, Baltimore, and Philadelphia beginning in the late 1940's and never heard of a lead-based interior residential paint. Because exterior paints, including white lead in oil, were significantly more expensive and much slower to dry than interior paints, exterior paints were not intended for use as interior paints, and it would be very surprising to find a consumer or painting contractor using exterior paints on the interior. 12. Sherwin-Williams was consistently an industry leader in removing lead pigments and driers from its paints, when it became technically feasible to substitute non-lead pigments and driers while maintaining superior performance of the paint. It was Sherwin-Williams' policy and practice to use the safest and best technology feasible in its paints. Sherwin-Williams was a leader during World War II in introducing interior latex water-based paints and later, in the late 1950's and 1960's, acrylic and latex exterior paints not using lead pigments. 13. I do not know of any way anyone could determine now how much of Sherwin- Williams' white lead pigment, which was made prior to 1947, went to residential uses, interior and exterior, as opposed to the commercial, industrial, railroad, or automotive paints that were made. 14. No one at Sherwin-Williams, to my knowledge, ever tried or agreed to conceal the health risks of lead paint to children, nor was there ever any decision not to warn of those risks once they were known and understood. Sherwin-Williams always stated on the label 5 whenever its paint or pigment contained lead. Last, Sherwin-Williams never represented that lead paint was safe for children to eat. Further affiant sayeth naught. I George Falkenberg y f f V/ v(r " Cl ________________- *"> ,, Sworn to and subscribed before me this \ tS day of^YQo^-0., , 1999. -V \ A' \Q\ At C V Notary Public C*. . - vNj-1 A- v \ -'i- .~X D \ 6