This week has been a double-header. First a win in the Missouri Supreme Court. Today an even more important win - since it focused directly on public nuisance - in the New Jersey Supreme Court. Next Wednesday we hear from the Ohio Supreme Court and sources are "guardedly optimistic." And we have our fingers crossed for City of Milwaukee v NL Industries. The defense just rested. We are waiting for closing arguments. A few sources tell us that Wisconsin law would tilt this into the plaintiff's corner. Let's see if Donald Scott, lead defense attorney for NL Industries, can change those odds.
Well, it's a day of defense attorneys gone wild, along with others associated with this litigation. Responses are pouring in. Here are some samples.
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Bonnie J. Campbell, spokesperson for the defendants and former Attorney General of Iowa:
"With this long-awaited and significant ruling, the Supreme Court of New Jersey has taken an important step by joining Missouri, Illinois and other state courts in rejecting the distortion of public nuisance law.
"Today the Court found that the plaintiffs' nuisance claim is inconsistent with the well-recognized parameters of public nuisance law, and that to find otherwise would be directly contrary to the legislature's pronouncements on both lead paint abatement programs and products liability law. These companies are not responsible for risks today from poorly maintained lead paint ...
"The New Jersey legislature has adopted a comprehensive program to address risks created by landlords who do not maintain their properties. The best way to protect children is to enforce the law, which requires landlords to maintain their properties and empowers local boards of health to clean up properties when landlords neglect their responsibilities."
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Prominent Defense Attorney who has been following the litigation since 1999, off the record:
"What makes this opinion so important is the careful analysis of the history and origin of public nuisance and the final (and correct) conclusion that public nuisance simply does not fit as a viable claim against manufacturers who made and sold lead paint and pigment may years ago.
"As the court stated, after carefully reviewing the history and law of public nuisance (page 22), 'through our use of this analytical methodology, however, we can only conclude that plaintiffs' loosely-articulated assertions here cannot find their basis in this tort. Rather, were we to permit these complaints to proceed, we would stretch the concept of public nuisance far beyond recognition and would create a new and entirely unbounded tort antithetical to the meaning and inherent limitations of the tort of public nuisance.
"The court also recognized the origin of public nuisance in criminal law. As the court stated, 'Notwithstanding that development, the essential elements of public nuisance as a theory of tort recovery find their genesis in this historical basis in crime and criminal prosecution.' Diametrically opposed to this conclusion was Rhode Island Judge Michael Silverstein's instruction that the conduct of the defendants was irrelevant to whether they were liable for a public nuisance. Wrongful conduct, however, it at the very core of criminal law, but the State of Rhode Island did not have to show wrongful conduct on the part of any of the defendants.
"The court also found, as the defense lawyers directly associated with the cases have always argued, that the property owners must bear the burden of paint that has been allowed to deteriorate and become a health hazard. The court said (page 39), '[w]e must conclude that the Legislature, consistent with traditional public nuisance concepts, recognized that the appropriate target of the abatement and enforcement scheme must be the premises' owner whose conduct has, effectively, created the nuisance.
"Finally, the court found, as the defense attorneys have continually contended, that the public nuisance claim is really a product liability claim disguised as 'public nuisance.'
"The court adopted the position, which has been continually asserted by the defendants' defense teams, that plaintiffs use of public nuisance subsumes the entire body of law of product liability. As the court stated, 'We cannot help but agree with the observation that, were we to find a cause of action here, nuisance law would become a monster that would devour in one gulp the entire law of tort (page 50)'"
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More commentary to be posted later.
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