Twisting Public Nuisance Laws

By July 1, 2008Briefly Legal

This AP story notes state courts in New Jersey and Missouri rejected public nuisance lawsuits against paint manufacturers last year, while a jury in Milwaukee ruled in favor of NL Industries, one of the defendants in the Rhode Island lead paint lawsuit.

Ohio is the only other state that has sued. Jim Gravelle, a spokesman for that state’s attorney general’s office, said lawyers in the office were interested in what the Supreme Court said because the arguments in both cases are very similar. But he said it does not affect Ohio’s lawsuit because that suit is based on Ohio law.

“This in no way restricts Ohio’s right to hold lead paint companies liable for the extreme harm they have caused Ohio citizens under public nuisance or other causes of action,” he said.

In no way? Really? Ohio has a new attorney general these days, not the same one (Marc Dann) who filed the original lawsuit in 2007. Dann’s judgment proved less than stellar, generally. Perhaps the new AG , Nancy Rogers, can re-evaluate the state’s case in light of the Rhode Island ruling and save the Ohio a lot of money in fruitless litigation.

As AG Rogers considers that option, we commend this article in the Washburn Law Journal, vol. 45, no. 3 (Spring 2006), “The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort,” by Victor Schwartz and Phil Goldberg of Shook, Hardy & Bacon:

In the movie “Zelig,” Woody Allen’s character was chameleonlike. His personality changed to fit his surroundings or needs at the moment. Throughout history, there have been various attempts to turn the tort of public nuisance into a Zelig-like legal theory as amorphous as the word “nuisance” itself.1 Recently, some state attorneys general and personal injury lawyers have been trying to convert the tort of public nuisance into a cutting edge legal theory and are using it in the most important mass litigations of our time. They are attempting to move public nuisance theory far outside its traditional boundaries by using it to sue product manufacturers in an effort to circumvent the well-defined structure of products liability law. If history and sound public policies guide courts, these lawsuits will fail.  Unlike the character Zelig, public nuisance theory has a rich history and distinct personality.  

We note that Phil was the lead drafter of the amicus brief the NAM joined in the Rhode Island case. So congratulations, and good arguing!

UPDATE (6 p.m.): LegalNewsline has a good review of the paltry few remaining public nuisance suits against paint manufacturers, including the state of Ohio’s: “A state judge has already dismissed the City of Toledo’s. Moellenberg said the public nuisance theory can’t survive an examination in Ohio. ‘(T)he plaintiffs (in Toledo) are represented by many of the same attorneys that brought the Columbus lawsuit, and they didn’t even appeal,’ Moellenberg said.” Charles Moellenberg is the Pittsburgh attorney with Jones Day who represented Sherwin-Williams.

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