NAM Seeks Supreme Court Review of $1 Billion “Public Nuisance” Claim Against Manufacturers

By August 17, 2018Shopfloor Legal

The NAM’s  Manufacturers’ Center for Legal Action (MCLA) filed a brief today that asks the U.S. Supreme Court to hear one of the most significant tort liability cases in a generation. In ConAgra Grocery Products v. California, 10 California counties sued companies that sold paint containing lead pigment more than 70 years ago. A California court held two companies liable for $1.15 billion in damages to remove this paint from private homes and buildings built prior to 1950 in several California counties and cities. California at the time even promoted the use of lead paint. The companies are now asking the U.S. Supreme Court to review the case, and the MCLA today filed an amicus brief in support.

Beyond the staggering and unwarranted judgment itself, the California court’s ruling threatens manufacturers by validating a new form of tort liability. In recent years, plaintiffs’ lawyers have sought to hold companies liable for selling legal and regulated products, claiming that their use creates a public nuisance. Courts have largely rejected these so-called “public nuisance” claims—until now.

If the U.S. Supreme Court does not reject these overbroad public nuisance claims, manufacturers could be hit with a flood of new lawsuits. Municipalities are already pursuing public nuisance claims seeking billions of dollars from energy manufacturers for alleged climate change impacts. Through the Manufacturers’ Accountability Project, the MCLA is already pushing back against these misguided efforts. Other governments are seeking to use public nuisance law to hold companies liable for harm allegedly caused by chemicals manufactured and used decades ago. It is just a matter of time before other legal and useful products will also be targeted.

The MCLA’s amicus brief in support of Supreme Court review argues that the California court’s holding violates the constitutional rights of the defendants. We highlight the sustained campaign to turn the public nuisance doctrine into a “catch-all” tort for social and environmental issues. We stress that such issues are ill-suited for courts and should remain a legislative and regulatory matter.

Peter Tolsdorf

Peter Tolsdorf is the vice president of litigation and deputy general counsel at the National Association of Manufacturers.

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