Public nuisance in product liability cases has taken a beating. State Supreme Courts, ranging from Rhode Island to Missouri, have essentially tossed them. Perhaps seeing the handwriting on the wall, the state of Ohio withdrew its lead paint public nuisance litigation. It could be another story outside product liability, e.g. the possible ramifications of the public nuisance lawsuit "State of North Carolina v. TVA," which the plaintiff won.
The last frontier on pursuing this novel theory of public nuisance in product liability could be in the state of California. Pending in that high court is a review of the contingency aspect of the Santa Clara lead paint public nuisance suit. Here is the opinion of the CA appeals court allowing contingency in cases filed by government entities if full control is maintained by the government entity Download H031540.
Yesterday, the defendants filed a brief with the CA SC and Sherwin-Williams, as a defendant, filed a separate one. The defendants's is available free by contacting Mgenova091@aol.com. Here is the brief filed by Sherwin-Williams Download SW-SantaClara--ReplyBriefontheMerits The author of this blog will comment on the two briefs later this weekend.
The Santa Clara contingency review is important because of at least two reasons. The CA SC is perceived as atypical. There's no predicting what the Justices will rule. Two, if the contingency is allowed and the case moves forward in CA, there's also no predicting what that could generate in other lead paint public nuisance lawsuits, particularly in CA. Since CA is also atypical, if the plaintiff wins in Santa Clara, it's unlikely similar suits would catch fire nationally. But it is likely that they could spread throughout CA, a state with extreme budget problems.
The stakes in CA for the lead paint defendants, ranging from ARCO to Sherwin-Williams, are high.
Deconstruction of defendants's briefs to come this weekend.
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