MO Supreme Court Ruling Favoring Lead Companies - Richard O. Faulk Comments

Richard O. Faulk is Chair of the Litigation Department of Gardere Wynne Sewell LLP.  He and other members of the firm frequently publish on public nuisance issues.  Here is his comment on today's Missouri Supreme Court ruling in favor of the lead paint companies.

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Richard O. Faulk, on the record:

"Recently we filed an amicus curiae brief for the American Chemistry Council in the Missouri Supreme Court in a case where the City of St. Louis sought to impose 'market share liability' in a public nuisance claim against various lead paint and pigment manufacturers. [Copy of that amicus curiae brief available free from MGenova981@aol.com] Today the Missouri Supreme Court ruled that the principles of 'market share liability' do not apply in public nuisance cases involving lead paints and pigments.

"Obviously, the defendants were admirably represented by their own counsel, and we were fortunate to lend them some degree of support.

"The court divided 4-3 in favor of the defendants. According to the majority, product identification linking a particular defendant's product to the injury of damage alleged is indispensable to recovery in public nuisance litigation.  The requirement applies with equal force to public nuisance cases filed by government entities for damages caused by an alleged nuisance.  The city is required to meet the same causation standard as any other plaintiff who seeks specific damages.

"The majority properly rejects using a common law 'end run' around the causation requirements generally applicable to product liability cases.  The court's decision inherently recognizes that it is not the 'label' ascribed to a cause of action that matters, but rather the substantive underpinnings of the claim.  Hence, merely characterizing a tort action as a 'public nuisance' is not determinative.

"The court also appreciates that an action for injuries or damages incurred in a private residence is not transformed into an exceptional 'public nuisance' case merely because it is either brought by the state (as opposed to individuals) or because a large number of persons are affected.  In that sense, the court's decision differs dramatically from the recent judgment of the trial court in the Rhode Island lead paint litigation."

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White papers authored or co-authored by Mr. Faulk [Rfaulk@gardere.com] are available on the firm's website www.gardere.com.  They can be retrieved by clicking on Richard O. Faulk's bio and on the right hand side will be the list of publications.

Three of the studies are particularly useful for lead-paint watchers.  They are on public nuisance, market share liability  and alternate liability theory.