CJAC: Civil Justice Association of California

Sep 26, 2016

Nuisance Lawsuits by Local Prosecutors: A Dangerous Game?

Daily Journal
September 26, 2016

By Kim Stone

Recent lawsuits brought by local prosecutors using a public nuisance legal theory — the lead paint lawsuit, the opioid lawsuit and the Monsanto lawsuits — raise troubling questions of law and public policy. Local jurisdictions are using public nuisance legal theory as a kind of super-tort to avoid traditional product liability law. They apply new law to lawful conduct that took place decades ago, rely on revisionist history, and seek to hold companies liable for the failure of others to maintain products or to dispose of them properly. Making product manufacturers responsible for the entire life and afterlife of their products is bad law and bad for consumers, who ultimately have to pay the price.

In 2000, seven California counties and three cities claimed that former manufacturers of white lead pigment last used in residential paint over 40 years ago should pay to inspect every residence built before 1981 and to abate any lead paint hazards found. It didn’t matter to local government or their bounty-hunting outside lawyers that no one knew about the dangers of lead paint to children when it was made and sold. It didn’t matter that the manufacturers fully complied with all contemporaneous government regulations about selling paint, and that they quit selling the paint in 1972 when risks became known and the residential use of lead paint was outlawed. It didn’t matter that federal and state law provides that intact, well-maintained lead paint is not a hazard, and that property owners are responsible to prevent or abate hazards from deteriorated lead paint. It didn’t matter that abating intact lead paint actually creates hazardous lead dust and can raise children’s blood lead levels. The trial judge nevertheless imposed liability on only three of the many former white lead and lead paint manufacturers — to the tune of $1.15 billion — to inspect and abate all homes constructed before 1981. That’s approximately 4 million homes the court has just declared a public nuisance.

The blood lead levels of California children are at an all-time low, still declining, and below the national average. California’s lead poisoning prevention program is a public health success, and it is funded entirely by industries. The California Department of Health says that most lead exposure now comes from lead in soil created by old auto and industrial emissions, not paint. The trial judge’s program is not only unnecessary, extraordinarily intrusive on owners and residents, and potentially very risky for children, but it misses the target.

To read the full op-ed, click here.

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