Lead paint litigation

A legal nuisance

03 September 2007 00:00  [Source: ICB]

Lead-paint litigation takes another turn as local governments in the US file "public nuisance" lawsuits.The implications for the chemical industry are profound

Scott Smith/Halleland Lewis Nilan & Johnson

HANDCUFFED BY the usual legal constraints in suing companies for products that were lawful when made, local governments are turning to a new loophole - public-nuisance litigation.

Fought on the battleground of lead-paint lawsuits, the results could have profound implications for the chemical industry.

During the past decade, state and local governments throughout the country, usually aided by contingent-fee counsel, have started industry-wide litigation against manufacturers of products that are supposedly responsible for handgun violence, childhood lead poisoning, global warming and a variety of other societal ills.

Most of these cases involve products that are or were perfectly lawful to make or sell, free from defect, pervasively regulated by federal, state and local agencies, and/or harmful only when misused or abused by others.

Moreover, governmental units cannot recover damages for harm sustained by their citizens. So traditional product-liability law, requiring proof of product defect or other wrongful conduct and actual harm proximately caused by the product's use, is little use to municipal plaintiffs in these cases.

THE NEXT TOBACCO

Unfortunately, the quest for the "next tobacco" - the siren song of using industry-wide tort settlements as new revenue sources for deficit-strapped governments - has led municipal plaintiffs to advocate that such claims are not controlled by product liability law, but by the "vaguely defined" and "poorly understood" tort of public nuisance.

The main battleground on which the attempted overthrow of product-liability jurisprudence by public-nuisance law has been fought is lead-paint litigation.

The tort of public nuisance is defined generally as "an unreasonable interference with a right common to the general public." In lead-paint cases, plaintiffs contend that the "cumulative presence" of lead pigment in paint constitutes a public nuisance since the public has a right to be free from lead poisoning.

As one cause of childhood lead poisoning, so the argument goes, lead pigment in paint unreasonably interferes with that right. That, and the fact that defendants manufactured and sold lead pigment, are, in the plaintiffs' view, all that is necessary to establish a prima facie case of public nuisance.

In particular, what plaintiffs claim they need not demonstrate in a lead pigment public nuisance action are the staples of a traditional product liability claim - that:

lead pigment was defectively designed, manufactured or labeled

defendants were negligent or otherwise culpable with regard to the manufacture and sale of lead pigment

the lead pigment that caused harm was manufactured or sold by an identified defendant

and lead pigment caused actual harm to individuals or the community as a whole.

In the plaintiffs' view, affirmative defenses common to product liability cases, such as state-of-the-art, misuse, and many others, have no place in the law of public nuisance.

To the public-nuisance plaintiff, the fact that defendants had no reason to know, when producing lead pigment, about medical science that did not come into being until decades after lead paint was banned, is not important. The question is whether lead paint causes or threatens to cause harm today.

Even though scientists generally agree that intact, well-maintained lead paint does not cause childhood lead poisoning, public nuisance plaintiffs argue that because landlords may fail to maintain lead paint in their buildings (in violation of state and local laws), lead paint is always a "potential" hazard for public nuisance purposes - thus banishing such defenses as misuse and intervening or superseding cause to the sidelines.

THE RHODE ISLAND CASE

The high-water mark of plaintiffs' efforts to change product-liability suits into public-nuisance claims in lead-paint litigation occurred in "State of Rhode Island v. Lead Industries Association," a tort action brought by Rhode Island's attorney general against former manufacturers of lead pigment for money damages and the abatement of all lead paint in all structures, public and private, throughout the state.

Both sides waged a fierce battle over whether product-liability law or public-nuisance law governed the claims. The trial judge sided with the state, and determined that its claims sounded in public nuisance.

Many of the jury instructions given by the trial court reveal the degree to which the doctrine of public nuisance can eviscerate traditional product liability principles.

Did the state, for instance, have to prove that the defendants' lead pigment was defective or that they were guilty of some wrongful conduct? The trial court ruled not: "The act or failure to act by a defendant need not be intentional or negligent to impose liability for creating a public nuisance. Rather, the fact that the conduct which caused the public nuisance is lawful or has not been made unlawful does not preclude liability"

Did the state have to prove that lead pigment manufactured or sold by any defendant was even present in Rhode Island? The trial court said no: "you need not find that lead pigment manufactured by the defendants is present in particular properties in Rhode Island to conclude that defendants are liable for public nuisance in this case nor do you have to find that the defendants sold lead pigment in Rhode Island.

What about proof that the defendants' lead pigment caused actual harm? Once again, this was not required: "[h]arm or injuries necessary for a public nuisance to exist may be either actual present harm or the threat of likely future harm."

Finally, what about the fact that defendants are powerless to enter into private property to abate a nuisance? Not a problem: "[t]he defendant that participates to a substantial extent in the activity that causes a public nuisance is liable for the nuisance even after it has withdrawn from or stopped the activity and even if it is not in a position to stop the harm or to abate the condition."

Following the Rhode Island verdict, the state's attorneys publicly said the lead-pigment defendants were "at the bottom of a very deep hole." But that prediction proved unfounded, as other courts faced with municipal lead-paint cases have rejected the Rhode Island trial court's jettisoning of product-liability law.

The New Jersey Supreme Court has held that public nuisance suits brought by 26 municipalities against the lead pigment defendants were, in fact, product-liability actions that could not survive outside the ambit of New Jersey's product-liability statutes.

Were it otherwise, according to the New Jersey Supreme Court, "nuisance law would become a monster that would devour in one gulp the entire law of tort."

PRODUCT-LIABILITY STATUTES

Similarly, the Missouri Supreme Court rejected a key element of the Rhode Island analysis and held that even governmental plaintiffs pleading public nuisance claims must identify the specific defendant(s) that made or sold the lead pigment in need of abatement.

And in the trial of a lead-pigment public-nuisance claim brought by the city of Milwaukee against NL Industries, the trial court instructed the jury that proof of NL's wrongful conduct was a necessary element of the plaintiff's case (unlike Rhode Island). The jury returned a defense verdict.

Also, in December 2006, the Ohio General Assembly enacted Senate Bill 117, which clarified the scope of Ohio's Product Liability Act as encompassing public nuisance claims arising out of the manufacture or sale of a product.

For the foreseeable future, the battle over whether public nuisance can supplant product liability law in lead pigment cases will continue to rage.

But if lawful, nondefective products can become targets of the "vaguely defined" tort of public nuisance, thereby wiping from the books decades of established product liability jurisprudence, no industry is safe from contingency-fee lawyers and their revenue-hungry governmental clients.

Scott Smith is a trial lawyer with the Minneapolis firm of Halleland Lewis Nilan & Johnson, P.A. and concentrates his practice upon the defense of pharmaceutical, medical device, lead paint and other toxic tort and product liability actions in federal and state courts throughout the US. Smith served as trial counsel for one of the defendants in the Rhode Island lead pigment case and is involved in the other lead pigment cases referred to in this article.

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