In re Lead Paint Litigation, A-73-05 was heard by the New Jersey Supreme Court last November.
That lawsuit has a long history. It was filed in New Jersey by Newark, Camden, Jersey City, Passaic and 22 other city and county governments against eight former lead-paint manufacturers. They include DuPont, Sherwin-Williams, NL Industries, Millennium Holdings, Atlantic Richfield, American Cyanamid, Cytec Industries and ConAgra Grocery Products Company. The plaintiffs are being represented by Motley Rice, which also represented the state of Rhode Island in the landmark RI lead paint trials I & II (and if there's a III).
In 2002, reports Charles Toutant in the NEW JERSEY LAW JOURNAL (March 8, 2006), Middlesex County Superior Court dismissed the case. The reason essentially was that responsibility for abatement is the landlords'.
In August 2006, the Appellate Devision reinstated the suit. The reason was the court's interpretation that landlords weren't solely responsible for abatement. The NJ Supreme Court will be hearing the case.
Sources for the defense predict that the case will collapse right there in the NJ Supreme Court after the ruling is issued. Their arguments focus on many issues associated with the 900-year-old public nuisance law. But, their best shot seems to concern the sections of the law concerning "public right" and "harm."
As for "public right," defense attorneys assert that this concept in public nuisance has a highly specific meaning of "a right held in common by all members of the general public" which is "collective in nature." This, they contend, is very different from alleged violations of the rights of a number of individuals. An actual violation of a public right, they assert, would be air pollution or inaccessibility of a public highway.
As for "harm," the long and short of this is that a harm by itself ain't enough. According to defense lawyers, to be liable for a public nuisance the conduct must be wrong or actionable under tort law.
Tort law specifies that the conduct can only be actionable if it meets the strict liability principles or is in violation of a state statue. Under strict liability principles, the conduct would have to be unreasonable or intentional and constitute an unusual dangerous activity.
In addition, there's the matter of proximate cause of the harm. It seems impossible to prove that the defendants were the proximate cause of the harm.
Whatever happens, though, in the NJ Supreme Court probably won't bring closure to the public nuisance litigation issue. Weary former lead-paint manufacturers instead are looking to state-level legislation as well as the federal courts to stop this prairie firm of public-nuisance litigation.
Sources tell me that in NJ, just as in Ohio (Substitute Senate Bill 117), there are plans for a bill in the legislature to prohibit the extension of the 900-year-old public nuisance law to what should be product-liability cases.
Members of state legislatures seem to be becoming sympathetic to such bills, especially since the Attorney General in California piggybacked on this sort of novel legal thinking in September 2006. The CA AG filed a lawsuit against domestic auto manufacturers. The charge: legal responsibility for global warming. This provocative and highly controversial stance follows similar kinds of lawsuits against industries ranging from fast food to handguns. Incidentally, the posse chasing after gun manufacturers was halted by Congressional action, not the courts.
As for taking the struggle to the federal courts, Sherwin-Williams did that in Mississippi and the litigation blew away. Last October, in what the media describes as a pre-emptive move, Sherwin-Williams filed a complaint in Columbus in federal court against cities in OH which were considering suing it or had already sued it.
It would be interesting to ask the presidential candidates, particularly since so many of them are attorneys, how they perceive this ten-year run of public-nuisance litigation.