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Key Takeaways
State legislatures continue to explore restrictions on public nuisance liability, particularly for product-adjacent claims and public-entity plaintiffs. Where legislatures ultimately draw the line on who may sue and what conduct qualifies will shape public nuisance litigation risk and defense strategy for years to come.
As we highlighted last month, public nuisance theories have become an increasingly common vehicle for plaintiffs, including governmental entities, to pursue product liability claims. The theory gained traction in the opioid litigation and has since appeared in emerging waves of litigation, including claims against social media platforms brought by school districts and other public entities. For example, in a recent order in In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Judge Gonzalez Rogers denied summary judgment and ruled that a school district’s public nuisance claims could proceed to trial.
Some states, however, are considering steps to curtail the scope of public nuisance lawsuits. Indiana is actively considering a tort reform proposal that would limit who may bring a public nuisance claim and what those claims may encompass. House Bill 1417 would restrict public nuisance actions to “governmental entities,” defined to include the State of Indiana and its agencies, while expressly excluding political subdivisions, municipalities, and other local units. In practice, the bill would foreclose public nuisance suits by many local public bodies (including school districts) and would also prevent private individuals from being able to bring a public nuisance claim. The bill would also establish a Tort Reform Commission to review civil causes of action across the state. Notably, the proposal was originally considered in a broader form but was narrowed by the Senate Judiciary Committee.
Indiana is not alone. Last year, Montana enacted first-of-its-kind legislation, H.B. 791, which redefined public nuisance under Montana law to exclude claims related to the design, manufacture, distribution, sale, or marketing of products.
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