Is the Public Nuisance Universe Expanding?

The recent filing of several high-profile public nuisance cases fighting waterway contamination, lead paint and negligent distribution of opioid medications may signal a growing trend, attorneys and law professors say.

Some underlying causes are rules that make it tougher to bring class action lawsuits, the success of public nuisance tobacco litigation, and scientific advances that make it easier to track pollutants back to manufacturers, they say.

And if the incoming Trump administration pursues fewer federal enforcements, the next four years may be fertile ground for even more public nuisance filings.

‘Increasingly Attractive Cause of Action’

“In an era in which federal enforcement may be lagging, public nuisance may provide public entities, such as states and municipalities, with a litigation alternative to waiting for enforcement that may or may not come,” Distinguished Emeritus Professor Jean Eggen at Widener University Delaware Law School, Wilmington, Del., told Bloomberg BNA.

Eggen specializes in toxic torts, civil procedure and science and the law.

“Looking forward, if the new administration eliminates and/or reduces many environmental regulations, the courts may provide recourse, and public nuisance may be an increasingly attractive cause of action because the relief available may be an injunction or the costs of abatement.”

Public nuisance isn't a new cause of action. In fact, it goes back hundreds of years to the beginning of English common law. The Restatement (Second) of Torts defines public nuisance as “an unreasonable interference with a right common to the general public.”

Traditionally, public nuisance wasn't a tort claim, Professor Donald G. Gifford at the University of Maryland School of Law, Baltimore, told Bloomberg BNA. Gifford consulted with the National Paint & Coating Association on lead paint public nuisance suits and has been critical of such litigation.

“An attorney general would charge someone with a crime and get an injunction to stop the action,” he said.

Tobacco Suits

In 1994, Gifford said, “the attorney general of Mississippi knew he couldn’t prove a traditional case against the tobacco manufacturers so he filed a public nuisance claim.” ( State v. Am. Tobacco Co., Miss. Ch. Ct., No. 94-1429, 5/23/94 ).

Dozens of states ultimately sued the tobacco companies, resulting in a $365.5 billion settlement.

After that case settled, Gifford said, ‘big mass-tort firms began promoting public nuisance.”

“Most of the time these claims are being rejected,” Gifford said, with a recent California lead paint case being a notable exception ( People v. Atlantic Richfield Co., Cal. Super. Ct., No. 1-00- CV-788657, 1/7/14 ).

In recent years, public nuisance claims have been brought over guns, lead paint, cigarettes, the gas additive MTBE, global warming, opioids, polychlorinated biphenyls and contaminated drinking water.

Though some see the expansion of public nuisance as too vague and malleable, others view it as a legitimate use.

“So long as there is an unreasonable interference with the public health, there is nothing that requires a public nuisance claim to arise from pollution or other land-based interferences,” Professor Eggen said.

Lead Paint, PCBs, Opioids ..

In January 2017, the Port of Portland, Ore., became the latest plaintiff to file a public nuisance action against Monsanto for the contamination of public waterways with PCBs manufactured by the company but used by other parties ( Port of Portland v. Monsanto Co., D. Or., No. 17-cv-00015, 1/4/17 ) (see related story). The suit mirrors pending actions filed by several west coast cities and the state of Washington (see related story).

In February 2016, West Virginia filed a public nuisance action against the nation’s largest distributor of prescription drugs, McKesson Corp., for the delivery of opioids ( West Virginia v. McKesson Corp., S.D. W.Va., No. 16-cv-01772, 2/23/16 ), and in August 2016, Suffolk County, N.Y., filed a similar suit. The counties of Orange and Santa Clara, Calif., also filed opioid public nuisance suits in 2014, which were dismissed the following year. The West Virginia suit alleges, in part, that McKesson negligently distributed over 1.2 million doses of opioids to a county with a population of just 24,500, ignoring an obligation to investigate suspicious orders.

In June 2016, Michigan filed public nuisance claims against two engineering firms over the contamination of the Flint, Mich., water supply.

And in one of the most significant cases, in December 2013, a California court, in People v. Atlantic Richfield, ordered three paint manufacturers to pay $1.1 billion to abate lead paint in millions of homes after finding the companies sold a hazardous product that created a public nuisance. Other state courts, including Rhode Island and New Jersey, have rejected such claims ( Rhode Island v. Lead Indus. Assoc., Inc, R.I., No. 2004-63-MP, 7/1/08 ; In re Lead Paint Litig., 924 A.2d 484 (2007)). The California case now is on appeal.

‘Judicial Tort Reform’

As a long-term trend, restrictions on negligence claims have driven plaintiffs to turn to public nuisance as an alternative, Professor Timothy D. Lytton at Georgia State University College of Law, Atlanta, told Bloomberg BNA.

Lytton teaches courses in torts and products liability and has written about the public nuisance suits against the gun industry.

“The duty of care in negligence actions expanded from the 1960s to the 80s. But then courts increasingly narrowed the scope of duty—in effect implementing judicial tort reform,” he said.

“As courts doctrinally closed the door on negligence actions, public nuisance became a way to re-frame negligence claims. The gun suits, for example, were originally brought as negligent marketing claims but were re-shaped as public nuisance.”

And though courts have shown resistance to accepting these public nuisance theories, “ultimately the outcome of these suits is less important than re-framing of the underlying issue as a public health concern, akin to environmental degradation or pollution,” Lytton said.

‘Demise of Class Actions’

Defense attorney Richard Faulk, with Alexander Dubose Jefferson & Townsend LLP, Houston, sees a connection between class action hurdles and an increase in public nuisance filings. Faulk has written extensively about public nuisance litigation.

“Years ago there were concerns that class action litigation was being abused, and Congress and the courts changed the rules to make certification more difficult,” he said.

The Class Action Fairness Act of 2006 lets defendants move many class actions to federal court, which has resulted in few class actions in state court. Supreme Court rulings in Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), and Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), have made certification more difficult.

“The demise of class actions, or the difficulty of getting classes certified, has led to an increase in public nuisance filings,” Faulk told Bloomberg BNA.

“To some, the use of public nuisance as aggregative mass tort was an answer to the obstructions or limits on class actions.”

Faulk has been critical of an expanded use of public nuisance as “so vague and malleable that it can accommodate almost every wrong.”

“If a public nuisance claim presents a sufficiently large risk to a large enough group of people, some defendants may choose to forego the risk of litigation and settle the case. In the class action abuse context, some courts described this threat as ‘judicial blackmail'—and it was a primary justification for class action reform.”

“Similar forces are at work in modern public nuisance cases. Moreover, it is unlikely the California lead paint case would have been pursued if not for the contingent fee arrangement. Without it, the cases would have cost the cities and counties too much money,” Faulk said.

Fate and Transport

But plaintiffs’ attorneys see it differently.

“Public nuisance is one of the oldest torts in American law. Chemicals companies like Monsanto cause public nuisances by manufacturing products they know will cause environmental hazards,” plaintiffs’ attorney John Fiske with Baron & Budd, Dallas, told Bloomberg BNA.

Fiske is one of the attorneys representing the plaintiffs suing Monsanto over PCB contamination of public waterways.

If there is an uptick in nuisance suits, it may be driven by scientific developments making it easier to link specific manufacturers to a harm, Fiske said.

“The technology of fate and transport is more sophisticated, and we’re better able to understand where contaminants came from and who manufactured them,” he said.

“Before, the levels might have been non-detectable because the technology wasn’t as good. But now we’re seeing which companies produced which chemicals and how they got where they got.”

As an example, Fiske cites PCBs marketed by Monsanto under the name Aroclor. Scientists now can specifically identify Aroclors, he said.

“That’s an ‘a-ha’ moment when you can say ‘these are Monsanto’s PCBs,’ ” Fiske said.

“That allows you to establish a causal relationship between Monsanto and the end result, which is PCB contamination,” he said.

Similarly, Fiske said, it was possible to connect MTBE to the oil companies in the public nuisance litigation that resulted in more than $1 billion in settlements.

“The technology is only getting better,” he said.

“The use of public nuisance as an alternative to class actions seems plausible because public nuisance is a backstop to tort law,” Professor Albert C. Lin at U.C. Davis School of Law, Davis, Calif., said.

“If there is a reduced ability to bring grievances, it makes sense to ask ‘where else might we turn?’ ” Lin told Bloomberg BNA.

Lin specializes in environmental and natural resources law, and his research includes toxic torts and the relationship between technology, the environment and law.

Lin said a lack of federal action in addressing environmental problems also would “help spur” public nuisance suits.

“The tobacco cases were prominent groundbreaking cases where we saw product liability and nuisance overlapping,” he said.

And suits against the gun and lead paint manufacturers soon followed.

Manifestation of Harm Delayed

“Public nuisance is attractive as a grab bag last course of action because its focus is on current injury, making it more viable than a product liability claim,” Lin said.

“One problem liability claims run into is the statute of limitations when harms arise much later. Public nuisance allows plaintiffs to focus on harm occurring today, even if the product was used a long time ago.”

Looking forward, he said, “There are all sorts of products, including chemicals aside from PCBs, that could be the subject of public nuisance suits where manifestation of harm is delayed.”

Time will tell whether the new administration’s enforcement priorities further spur public nuisance suits.

Three things are necessary to bring a public nuisance claim, Professor Anthony Sebok at Cardozo Law School, New York, told Bloomberg BNA.

“There has to be a public nuisance to abate and law to support a public nuisance claim. But you also need the will or political capital,” Sebok said.

“There might be more political will because of more political need after Jan 20,” when the new administration takes over, he said.

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