See State of Rhode Island v. Lead Industries Ass’n, C.A. 99-5226, (R.I. Super. Ct., Feb. 22, 2006); County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313 (6th Dist. Ct. App. 2006)

For almost two decades, paint manufacturers have successfully defended lawsuits alleging that lead-based paint had contaminated homes, supposedly injuring countless home owners and their children. Over the past six months, however, decisions in cases run on novel legal theories may signal a paradigm shift in this litigation.

Rhode Island Verdict

In February, following an earlier hung jury, the State of Rhode Island scored a significant victory against lead-based paint makers, with a jury of six deciding that defendant manufacturers (and their trade association) were liable on a public nuisance theory for Rhode Island’s lead paint problems -- putting defendants at risk for the cost of abating the problem in more than 240,000 homes, at an estimated cost of more than $1 billion.1

Apart from the immediate cost of this result, the Rhode Island verdict may well have greater implications for not only the paint industry (in terms of similar suits pending elsewhere), but for product manufacturers generally,whose traditional approach to products liability claims could be undermined by the use of public nuisance theories of liability, which are riddled with subjectivity and vagueness. See, e.g., Cal. Civ. Code § 3479 ("Anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.") (emphasis added).

Reinstatement of Class Action in California

Less than two weeks after the Rhode Island verdict, paint makers faced yet another setback in California, where an appeals court reinstated a class action public nuisance suit against them in March. See County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313, 325 (6th Dist. Ct. App. 2006). Brought on behalf of all public entities in California, Santa Clara alleges that defendants contributed to the creation of a public nuisance by concealing the dangers of lead, mounting a campaign against regulation of lead, and promoting lead paint for interior use -- even though defendants had known for nearly a century that lead paint was hazardous to human beings. Id. at 325.

Nuisance Theory Not "Essentially" Products Liability Claim

Dismissed by the trial court in July 2003,on the basis that suits against paint manufacturers for the production and distribution of lead paint could only be pursued, if at all,under traditional product liability laws, the appellate panel reversed,holding:

A representative public nuisance cause of action seeking abatement of a hazard created by affirmative and knowing promotion of a product for a hazardous use is not "essentially" a products liability action "in the guise of a nuisance action" and does not threaten to permit public nuisance to "become a monster that would devour in one gulp the entire law of tort" . . . A products liability action does not provide an avenue to prevent future harm from a hazardous condition, and it cannot allow a public entity to act on behalf of a community that has been subjected to a widespread public health hazard.

Id. at 328-329 (internal citations omitted).

Other governmental entities throughout the country, many facing budgetary crises leaving little room to fund their own lead paint abatement programs, are pursuing similar claims against lead paint makers under both public nuisance and traditional products liability theories. See, e.g., City of Milwaukee v. NL Indus. Inc. and Mautz Paint,No. 01CV000066 (Cir. Ct. Milwaukee Cty.) (set for trial on January 8, 2007).

Whether the current surge in lead paint litigation will continue to bring further setbacks to paint manufacturers remains to be seen, as does the assertion that novel claims for public nuisance will not "become a monster that [will] devour in one gulp the entire law of tort." What is prologue, however, suggests otherwise.


1 Before trial began, defendant DuPont Corporation agreed to pay Rhode Island nearly $12 million in settlement -- with roughly half earmarked to cover the cost of education, training, community outreach, enforcement, and lead-hazard research, and the other half set aside for abatement of lead hazards in 600 houses.

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