In recent years, creative plaintiffs who are faced with the inability to state a claim under traditional products liability theories, such as negligence, strict liability and breach of warranty, have attempted to hold product manufacturers liable via a novel application of public nuisance law. In February 2006, a Rhode Island trial court embraced such a theory to hold former manufacturers of lead pigment liable for costs of removing lead-based paints from buildings throughout the state of Rhode Island (the "Lead Paint Public Nuisance Theory"). Although this decision appeared to set a dangerous precedent for product manufacturers throughout the United States, subsequent cases generally have declined to apply the Lead Paint Public Nuisance Theory in the products liability context. This article discusses the Lead Paint Public Nuisance Theory adopted by the Rhode Island trial court, how the theory has been rejected by courts in New Jersey, Missouri and Ohio, the Rhode Island Supreme Court’s reversal of the trial court’s abatement order, and the future of the Lead Paint Public Nuisance Theory.
Public Nuisance in the Lead-Based Paint Context
Since 1987, plaintiffs have filed a host of lawsuits in 17 states against former manufacturers of lead pigments used in residential paint. Plaintiffs initially asserted negligence and products liability causes of action in an attempt to recover for alleged damages from exposure to lead-based paint. However, these tort-based claims were generally unsuccessful for a variety of reasons, including plaintiffs’ inability to identify the particular paint or pigment or the product manufacturer that caused their alleged injuries. See Litigation History, http://www.leadlawsuits.com/index.php?s=pageB (last visited Jan. 5, 2009).
Accordingly, in an effort to circumvent the basic requirements of a traditional products liability claim, plaintiffs began pursuing the novel Lead Paint Public Nuisance Theory. The Restatement (Second) of Torts defines a public nuisance as an unreasonable interference with a right common to the general public. 4 Restatement (Second) Torts § 821B at 87. "It is behavior that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community." State of Rhode Island v. Lead Industries Association, Inc. et al., 951 A.2d 428, 446 (R.I. July 1, 2008). In the lead paint context, plaintiffs argued that by manufacturing, selling and distributing lead pigments and lead-based paints, the paint industry interfered with the public right to a residential environment free from the health hazards of exposure to lead-based paint, which constitutes a public nuisance. See, e.g., Rhode Island, 951 A.2d at 440. Accordingly, plaintiffs argued, the manufacturers of lead pigments and lead-based paints should be liable for the costs associated with removing the paint from homes and buildings throughout the states where the lawsuits were filed. Id.
Lower Courts Initially Embraced the Lead Paint Public Nuisance Theory
In 2006, the plaintiffs’ bar were successful in using the Lead Paint Public Nuisance Theory against the manufacturers of lead pigments and lead-based paints. Specifically, in an action brought by the Rhode Island Attorney General, a Rhode Island jury found three paint manufacturers - NL Industries, Sherwin-Williams and Millennium Holdings (the "Rhode Island Defendants") - liable for the costs of removing lead-based paint from public and private buildings throughout Rhode Island under a public nuisance theory. Rhode Island, 951 A.2d at 434. The complaint, which was originally filed in 1999, alleged that former lead pigment manufacturers had manufactured, promoted, distributed and sold lead pigment for use in residential paint, despite knowledge that lead is hazardous to human health. Rhode Island, 951 A.2d at 439-40. The state asserted various causes of action, including public nuisance, and sought an order requiring the Rhode Island Defendants to (1) abate lead pigment in all Rhode Island buildings accessible to children, and (2) fund educational and lead-poisoning prevention programs, in addition to compensatory and punitive damages. Id.
In February 2006, a jury found that the cumulative presence of lead pigments in paints and coatings on buildings throughout Rhode Island constituted a public nuisance and that the Rhode Island Defendants caused or substantially contributed to the creation of the public nuisance and should thus be ordered to abate the nuisance. Id. at 442. On March 16, 2007, the trial court entered a judgment of abatement against the Rhode Island Defendants. Id. In its postverdict decision, the trial court held that merely manufacturing and marketing a product is sufficient to impose liability on a defendant – even in the absence of product identification and any evidence of specific injuries attributable to a particular defendant. Id. The cost of complying with the trial court’s order was estimated to exceed $3 billion. See Eric Tucker, Judge to Appoint Special Master to Advise on Lead Paint Cleanup, Associated Press, Feb. 26, 2007.
In addition, approximately one month later, a California appellate court allowed a similar lead paint public nuisance cause of action filed by various California municipalities to proceed, overruling a superior court’s dismissal of the public nuisance claim. County of Santa Clara et al. v. Atlantic Richfield Company et al., 40 Cal. Rptr. 3d 313, 324-25 (Cal. Ct. App. Mar. 3, 2006) (rejecting the lead pigment manufacturer’s argument that a cause of action for public nuisance does not lie because the underlying cause of the public nuisance is a product for which only a products liability cause of action will lie). While the California Supreme Court declined to review the appellate court’s decision in June 2006, County of Santa Clara, No. S142578, 2006 Cal. LEXIS 7622, at *1 (Cal. June 21, 2006), the appellate court’s decision is still subject to being reviewed by the California Supreme Court at a later date.
Courts in Other States Have Rejected the Lead Paint Public Nuisance Theory
Not surprisingly, the Rhode Island and California decisions garnered national attention from the plaintiffs’ bar, the defense bar and numerous legal scholars for several reasons, including the size of the verdict and the potential that the Lead Paint Public Nuisance Theory could be applied in contexts other than lead-based paint. However, plaintiffs’ attorneys have generally been unable to obtain similar verdicts in other states. Indeed, courts in New Jersey, Missouri and Ohio have all rejected the Lead Paint Public Nuisance Theory. For example, in February 2007, the New Jersey Supreme Court dismissed a consolidated action filed by 26 New Jersey municipalities, reasoning that the Lead Paint Public Nuisance theory is inconsistent with the "well-recognized parameters" of the common-law tort of public nuisance, and "directly contrary to legislative pronouncements governing both lead paint abatement programs and products liability claims." In re Lead Pigment Litigation, No. A-73-05, slip op. at 4 (N.J. June 15, 2007).
Later that year, in June 2007, the Missouri Supreme Court rejected a similar lawsuit filed by the City of St. Louis. St. Louis v. Benjamin Moore & Co., No. SC88230 at 6 (Mo. June 12, 2007). The Court based its ruling on causation grounds, holding that the product identification requirement "applies with equal force to public nuisance cases." Id. The Court confirmed that where a plaintiff claims injury from a product, "actual causation can be established only by identifying the defendant who made or sold that product." Id. at 4.
Finally, in December 2007, the Court of Common Pleas of Lucas County, Ohio granted defendants’ motion to dismiss a lead-paint public nuisance case filed by the city of Toledo. City of Toledo v. Sherwin-Williams Co. et al., No. CI 200606040 at 7 (Ct. Common Pleas, Lucas County, Ohio Dec. 12, 2007). The court explained that because the Ohio Supreme Court had rejected market share liability as a theory of recovery in a products liability action, "the plaintiff must establish a causal connection between the defendant’s actions and the plaintiff’s injuries, which necessitates identification of the particular tortfeasor." Id. According to the Court, the City failed to state a public nuisance claim because the complaint improperly pled a market-share theory and failed to "allege that certain Defendants have caused certain injuries." Id.
The Rhode Island Supreme Court Rejects the Lead Paint Public Nuisance Theory
On July 1, 2008, the Rhode Island Supreme Court issued a severe blow to the use of the Lead Paint Public Nuisance Theory when it unanimously overturned the jury verdict against the Rhode Island Defendants, holding that the State was unable to meet the essential elements of the tort of public nuisance. Rhode Island, 951 A.2d at 435. In particular, the Court held that the State had not and could not allege that the "defendants … were in control of the lead pigment … at the time it caused harm" and was unable to demonstrate that the alleged harm - childhood lead poisoning in homes - constituted interference with a "public right." Id.
The Future of the Lead Paint Public Nuisance Theory
While the lower court opinions in Rhode Island and California indicated that the Lead Paint Public Nuisance theory may be viable, which was a cause for concern for corporate defendants generally, subsequent courts have refused to apply the doctrine in the products liability context because it represents too drastic a departure from traditional principles of products liability and public nuisance law. The Rhode Island Supreme Court’s recent rejection of the theory provides additional support for the conclusion that public nuisance is not a valid theory upon which plaintiffs may recover from corporate defendants based on the manufacture, promotion, distribution or sale of products. See, e.g., Rhode Island, 951 A.2d at 456 (explaining that the "law of public nuisance has never before been applied to products, however harmful" and that "the proper means of commencing a lawsuit against a manufacturer of lead pigments for the sale of an unsafe product is a products liability action"). Although there are two remaining Lead Paint Public Nuisance lawsuits in Ohio and California, the decisions discussed above should influence the outcomes in these cases. See generally id. (relying extensively on the New Jersey Supreme Court’s decision that rejected the Lead Paint Public Nuisance Theory). Assuming that the outcomes in the Ohio and California cases are in line with the decisions discussed above, corporate defendants throughout the country can breathe a sigh of relief because courts will have unanimously rejected plaintiffs’ attempts to use the law of public nuisance as a means to sue manufacturers of lawful products.
Robert P. Alpert (firstname.lastname@example.org)
W. Marion Wilson (email@example.com)
Morris, Manning & Martin, LLP