Product Liability/Public Nuisance

The paint industry is among several product manufacturer industries that have been the target of state and municipalities’ “public nuisance” tort actions in courts across the United States in recent years.

This new trend of “public nuisance” litigation filed against product manufacturing industries includes handgun manufacturers, fast-food restaurant chains, lead pigment manufacturers, beer makers, poultry farmers and auto manufacturers.  It is being spearheaded by well-financed contingency-fee lawyers on behalf of governmental plaintiffs which are seeking damages and recoupment of anticipated state/municipal expenditures.

There is a grave and alarming problem with these types of lawsuits: they are actually product liability lawsuits masquerading as public nuisance suits. With no basis for product liability allegations — that is, product defect, negligence, fraud, failure to warn, and implied warranties —plaintiffs’ attorneys are exploiting vague public nuisance statutes to evade implausible product liability claims.

Take for example the state of Rhode Island’s lawsuit against former manufacturers of lead pigment.  In that case the state alleged, and a Rhode Island Superior Court agreed, that the mere presence of lead in paint and residences itself constitutes a public nuisance, (or) and? that marketing and distribution practices of manufacturers constitutes a public nuisance, so long as the lead remains in residences.

The Rhode Island Court held that merely manufacturing and marketing a product is sufficient to impose liability on a defendant— even in the absence of any evidence that a defendant’s product produced harm to any person where the nuisance allegedly exists.  In fact, according to instructions to the jury, no proof was required that a defendant’s product had ever been in commerce in Rhode Island!  That the defendant merely produced the type of product historically is considered a “substantial contribution to a public nuisance.” With this broad stroke, the court ruled that neither product identification nor evidence of specific injuries attributable to a particular defendant is necessary before a defendant can be ordered to abate a nuisance.

This Rhode Island decision, and others like it, open the door for any product that was lawfully manufactured, sold, placed into the stream of commerce, used according to its product design, and transferred out of the manufacturers’ control, to expose the manufacturer to potential liability for a perceived harm. Reason and fairness dictate that consumer products should not be accountable for creating a public nuisance long after their sale: there are statutes of repose and product liability statutes available to hold manufacturers responsible for reasonable periods.  

This is especially true regarding lead issues because states do have comprehensive laws dealing with the lead exposure problem. In fact, Rhode Island has one of the earliest laws on the books, namely the Lead Hazard Mitigation Act of 1995.  Regrettably, courts are ignoring the fact that these statutes were passed to prevent the very ‘nuisance’ that allegedly exists. 

The Rhode Island decision is already encouraging other public entities to take shots at the paint industry: the state of Ohio filed a Rhode Island-styled public nuisance lawsuit against paint manufacturers in April 2007. As noted, even more disconcerting is that all comparable  manufacturers are interchangeable and vulnerable under this scheme. While many U.S. companies have yet to feel the sting of such public nuisance liability, the threat of this attorney-profit driven litigation epidemic endangers virtually all of them.

The issues surrounding the perversion of public nuisance torts and the current trend against product manufacturers are involved and complex, but the inherent unfairness and danger are plain and simple. NPCA is advocating the need for real reform to narrow the scope of public nuisance statutes lest legitimate product manufacturers and their employees are put out of business and courts supplant legislative bodies in the making of public policy.