Public Nuisance—The New Mega Tort

Michael T. Nilan David H. Wright

Nilan Johnson Lewis P.A.

400 One Financial Plaza 120 South Sixth St. Minneapolis, Minnesota 55402 (612) 305-7500 [email protected] [email protected]

Return to course materials table of contents Michael T. Nilan is a founder and shareholder of the Minneapolis firm Nilan Johnson & Lewis PA, which specializes in complex product liability, toxic tort, and commercial litigation. He was lead trial lawyer for one of the defendants in Rhode Island v. Lead Industry Association, a precedent-setting case, which was also the longest lasting public nuisance jury trial in the country. Mr. Nilan has been listed as a Minnesota “Super Lawyer “ for the past 15 years. He is a mem- ber of DRI and a fellow of the American College of Trial Lawyers. Public Nuisance—The New Mega Tort

Table of Contents I. Introduction...... 205 II. Traditional Public Nuisance Law...... 206 III. Environmental Litigation Plaintiffs Find Public Nuisance...... 206 IV. Products Liability Plaintiffs Find Public Nuisance...... 208 V. Potential Advantages to Plaintiffs of Public Nuisance Claims...... 210 VI. Defeating Public Nuisance Claims...... 212 A. Preemption and Prevailing Statutory Schemes...... 212 B. Requiring Interference with a Right Common to the General Public...... 213 C. Lack of Control over the Alleged Nuisance or Its Cause...... 213 D. Standing...... 214 E. Statutes of Repose and Limitation Statutes...... 215 F. Public Policy...... 215 G. Lack of Causation...... 217 H. Political Questions and Nonjusticiability...... 217 VII. The View Is Still Cloudy As to Whether Public Nuisance Claims Will Gain a Foothold in Product Liability and Global Warming Actions...... 218 VIII. Conclusion...... 219

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Public Nuisance—The New Mega Tort

I. Introduction For years, legal experts have complained about the vagueness and elasticity surrounding the law of nuisance. As one U.S. Supreme Court justice wrote, “one searches in vain … for anything resembling a principle in the common law of nuisance.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1055 (1992) (Blackmun, J., dissenting). Eluding precise definition, concepts of nuisance law are “often vague and indeterminate.” City of Milwaukee v. Illinois & Mich., 451 U.S. 304, 317 (1981). The reporter for the first Restatement of Torts, Warren Seavey, referred to nuisance law as a “mystery.” Warren A. Seavey, Nuisance, Contributory Negligence and Other Mysteries, 65 Harv. L. Rev. 984, 984 (1952). He even omitted an entire subset of nuisance theory, the law of “public nuisance,” in the first Restatement. See Restatement (First) of Torts (1934). William Prosser, the reporter for the second Restatement, referred to nuisance as a “legal gar- bage can” filled with vagueness, uncertainty, and confusion. William L. Prosser, Nuisance without Fault, 20 Tex. L. Rev. 399, 410 (1942). More than two decades later, he still considered nuisance a “confused and difficult topic.” 46 ALI Proc. 268 (1969). Developments during the last 25 years have reaffirmed the impenetrable nature of nuisance law: There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word “nuisance.” It has meant all things to all people, and has been applied indiscrimi- nately to everything from an alarming advertisement to a cockroach baked in a pie. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, §86, at 616 (5th ed. 1984) [footnotes omitted]. One aspect of nuisance law—public nuisance—has proven to be a particularly elastic concept in recent years and has been asserted in an increasingly wide array of claims. In the 1980s and 1990s, plaintiffs in environmental contamination cases began claiming that harm from pollution could be redressed as a public nuisance. It didn’t take long before other plaintiffs began asserting, for the first time, public nuisance claims in products liability cases, particularly in mass tort cases. For plaintiffs, the appeal of public nuisance lies in its vagueness. It is an area of law that “strad- dles the legal universe, virtually defies synthesis, and generates case law to suit every taste.” W. Rodgers, Environmental Law §2.4, p. 48 (1986) [footnotes omitted]. For defendants, public nuisance represents a vast wilderness of potential liability. Public nuisance claims have the potential to dwarf other tort claims, eliminate traditional products liability defenses, and avoid statutes of limitation. Indeed, if nuisance law is applied to the sale of products, nuisance “would become a monster that would devour in one gulp the entire law of tort.” Tioga Public Sch. Dist. No. 15 v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993) (refusing to apply North Dakota’s nuisance statute to a claim based on the sale of asbestos). Just as the tide turned decidedly against claims of public nuisance in products liability actions in recent years, it received new life this past year from the Second and Fifth Circuits in two global warming cases: Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, at 392-93 (2d Cir. 2009); Comer v. Murphy Oil, 585 F.3d 855 (2d Cir. 2009).

Public Nuisance—The New Mega Tort v Nilan v 205 Although the Fifth Circuit recently vacated its global warming decision on a bizarre technical- ity, the Second Circuit is allowing a public nuisance claim to proceed against six major utilities based on a global warming theory. Once again, public nuisance is proving to be a particularly adaptable claim that may yet be capable of swallowing traditional tort law in a single gulp.

II. Traditional Public Nuisance Law “There are few ‘forms of action’ in the history of Anglo-American law with a pedigree older than suits seeking to restrain nuisances, whether public or private.” People ex rel. Gallo v. Acuna, 60 Cal. Rptr. 2d 277, 284 (Cal. 1997). Public nuisance is commonly defined as “an unreasonable interference with a right common to the general public.” Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536, 539 (3d Cir. 2001) [citations and internal quotations omitted] (affirming dismissal of public nuisance claim against gun manufacturers under New Jersey law). Blackstone defined nuisance as “anything that worketh hurt, inconvenience or damage.” 3 Blackstone, Commentaries, ch. 11, at 738 (Chase’s 3d ed. 1892). Dean Prosser provided an expanded definition: No better definition of a public nuisance has been suggested than that of an act or omis- sion “which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.” … It includes interference with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of explosives … ; with public morals, as in the case of houses of prostitution …, with the public peace, as by loud and disturbing noises …, with the public comfort, as in the case of bad odors …, [or] with public convenience, as by obstructing a highway… . Prosser & Keaton, The Law of Torts §90, at 643-44. The Restatement generally defines public nuisance as “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts §821B(1) (1979). Traditionally, courts have limited the scope of nuisance claims to interference stemming from the use of real property or infringement of public rights. See Camden County Bd., 273 F.3d at 539. “The public nuisance doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective ideal of civil life[,] which the courts have vindicated by equitable remedies since the beginning of the 16th century.” People ex rel. Gallo, 60 Cal. Rptr. 2d at 284. Public nuisance is a unique tort in that it focuses on the rights of the general public rather than the rights of the individuals alleging harm, and the typical plaintiff is a governmental entity or official seeking to vindicate a public right. David Kairys, The Governmental Handgun Cases and the Elements of and Underlying Policies of Public Nuisance Law, 32 Conn. L. Rev. 1175, 1175-76 (2000 Symposium). Recently, public nuisance claims have become a weapon of choice, moving beyond alleged nuisances tied to the use of real property.

III. Environmental Litigation Plaintiffs Find Public Nuisance Environmental contamination lawsuits fueled a growth in nuisance litigation during the 1980s and 1990s. “Because of its necessary connection to property, environmental litigation is a natural vehicle for reliance on the law of nuisance, and plaintiffs have used it to force industrial landowners to stop pol-

206 v DRI Annual Meeting v October 2010 luting and pay for the costs of environmental cleanup.” Lauren E. Handler & Charles E. Erway III, Tort of Public Nuisance in Public Entity Litigation: Return to the Jungle?, 69 Def. Couns. J. 484, 485 (2002). Asserting public nuisance claims for environmental harm widens the plaintiff’s net to cap- ture defendants who (1) no longer occupy the contaminated property, or (2) did not originally cause the harm. See Newhall Land & Farming Co. v. Superior Court, 23 Cal. Rptr. 2d 377, 382 (Cal. App. 5th Dist. 1993) (holding that a defendant who allegedly created the nuisance but does not currently have a possessory interest in the property is liable for creating or assisting in its creation and is responsible for the resulting damages), rev. denied (Cal. 1993); Starr v. Commissioner of Envtl. Protection, 627 A.2d 1296, 1310 (Conn. 1993) (finding that “a landowner, once apprised of the existence on his or her land of a contaminated condition, can generally be held liable for ‘maintaining a nuisance’ on that property, without regard to fault and regardless of whether the landowner had created or caused the condition”). Expanded liability has been allowed even though it is generally recognized that, to be liable for nuisance, the defendant must own or be in control of the alleged nuisance. See, e.g., State v. Schenectady Chems., Inc., 459 N.Y.S.2d 971, 976-77 (N.Y. Super. 1983); Friends of Sakonnet v. Dutra, 738 F. Supp. 623, 633-34 (D. R.I. 1990); City of Manchester v. National Gypsum Co., 637 F. Supp. 646, 656 (D. R.I. 1986) (applying New Hampshire law and stating that the term nuisance may be defined broadly, “[b]ut liability for damage caused by a nuisance turns on whether the defendants were in control over the instrumentality alleged to constitute the nuisance”). The use of public nuisance law to deal with environmental contamination has continued to grow, despite substantial statutory regulation of pollution. See State v. Fermenta ASC Corp., 608 N.Y.S.2d 980 (N.Y. Super. 1994) (finding Federal Insecticide, Fungicide and Rodenticide Act did not preempt state common-law public nuisance actions). While nuisance actions ordinarily are pursued against the owner of land for wrongful activity conducted on the land, one who creates a nuisance or substantially participates in the creation or maintenance of a nuisance may also be held liable. Fermenta ASC Corp., 630 N.Y.S.2d 884, 891 (N.Y. Super. 1995); State v. Schenectady Chems., Inc., 459 N.Y.S.2d 971, 976-77 (N.Y. Super. 1983). Thus, a “non-landowner can be liable for taking part in the creation of a nuisance upon the property of another.” Id.; State v. Tippetts-Abbett-McCarthy-Stratton, 527 A.2d 688, 692 (Conn. 1987) (holding that there is “no bright- line test to determine when a defendant’s connection to a particular parcel of property suffices to make it an unreasonable or unlawful ‘user’ of that property” and that property ownership is not a prerequisite to nuisance liability). “‘It is a principle of the common law that the erection of anything in the upper part of a stream of water, which poisons, corrupts, or renders it offensive and unwholesome, is actionable. And this principle not only stands with reason, but is supported by unquestionable authority ancient and modern.’” Commonwealth ex rel. Shumaker v. New York & Pa. Co., 79 A.2d 439, 444 (Pa. 1951) [citations omitted]. “Corruption of water, when it affects the public use of a stream or menaces the public health, becomes a public nuisance which the commonwealth may suppress by criminal proceedings upon indictment for maintaining a public nuisance and upon conviction the court may in its sentence include an order requiring abatement of the nuisance.” Id. So, in the area of environmental pollution, “ownership or possession of the property upon which the condition was found is not a prerequisite to responsibility for the injury or damage resulting therefrom.” Fermenta ASC Corp., 630 N.Y.S.2d at 891. Even a defendant’s ability to abate the nuisance has been held not to be a prerequisite to a public nuisance action in such cases. It is not surprising, therefore, that public nuisance has become an increasingly popular cause of action within the plaintiffs’ bar. Public Nuisance—The New Mega Tort v Nilan v 207 IV. Products Liability Plaintiffs Find Public Nuisance Public nuisance claims first began appearing regularly in products liability actions against asbestos manufacturers. In Tioga Public School District No. 15 v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993), for example, the court refused to apply North Dakota’s nuisance statute to a claim based on the sale of asbestos, opining that to do so would “in effect totally rewrite North Dakota tort law.” The court expressed concern that if nuisance law was interpreted to apply to the sale of products, nuisance would entirely displace tort law and products liability jurisprudence. Id. Most courts deciding asbestos cases have agreed. See City of San Diego v. U.S. Gypsum Co., 35 Cal. Rptr. 2d 876, 883 (Cal. App. 1994) (affirming dismissal of nuisance claim while finding no authority “that allows recovery for a defective product under a nuisance cause of action”), rev. denied (Cal. 1995); Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 520-21 (Mich. App. 1992) (finding idea of manufacturers and sellers as creators of nuisance seems “totally alien”), rev. denied, 512 N.W.2d 318 (Mich. 1993); City of Manchester v. National Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986) (applying New Hampshire law); Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp. 126 (D.N.H. 1984) (holding that nuisance law does not apply to manufacturers for claims arising from the use of their products); County of Johnson Bd. of Educ. v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D. Tenn. 1984) (allowing nuisance claims against product manufacturers “would convert almost every product liability action into a nuisance claim”). Although the public nuisance claims gained little traction in asbestos cases, plaintiffs asserted public nuisance claims against a number of other product manufacturers, most notably against manufacturers of tobacco products, guns, and lead paint and pigment. Most--but not all--courts held that the purchaser of a lawful product could not pursue a nuisance cause of action. See City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 420-21 (3d Cir. 2002 ) (holding that to extend public nuisance law to embrace the manufacture of handguns would be unprecedented for an appellate court); Cam- den County Bd. of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 540 (3d Cir. 2001) (same); City of Bloomington v. Westinghouse Elec. Co., 891 F.2d 611 (7th Cir. 1989) (dismissing City’s claim for public nuisance against a PCB manufacturer); In re Lead Paint Litig., 924 A.2d 484, 502 (N.J. 2007) (finding that “the suggestion that plaintiffs can proceed against these defendants [regarding lead paint sales] on a public nuisance theory would stretch the theory to the point of creating strict liability to be imposed on manufacturers of ordinary consumer products which, although legal when sold, and although sold no more recently than a quarter of a century ago, have become dangerous through dete- rioration and poor maintenance by the purchasers”); Miller v. Home Depot U.S.A., Inc., 199 F. Supp. 2d 502, 509 (W.D. La. 2001) (rejecting nuisance claims based on manufacture and sale of chromated cop- per arsenic treated wood); Mayor and City of New Orleans v. Smith & Wesson, Case No.98-19578 (La. D. Ct. Feb. 28, 2000) (holding that Louisiana Product Liability Act provided the exclusive cause of action for recovery against product manufacturers and, thus, dismissing nuisance claim); Penelas v. Arms Tech., Inc., 1999 WL 1204353, *4 (Fla. Cir. Ct. 1999) (“Public nuisance does not apply to the design, manufacture, and distribution of a lawful product.”); Mayor and City of Bridgeport v. Smith & Wesson, Case No. x06-cv-99-01531988, at 33 (Conn. Super. 1999) (dismissing nuisance claim for lack of standing); Texas v. American Tobacco Co., 14 F. Supp. 2d 956 (E.D. Tex. 1997) (rejecting the state’s “overly broad definition” and dismissing public nuisance claim brought against tobacco manufacturers). In one of the seminal handgun cases, the Illinois Supreme Court held in 2004 that the City of Chicago could not state a claim for public nuisance against handgun manufacturers, distributors, or dealers. See City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004); Young v. Bryco Arms, 821

208 v DRI Annual Meeting v October 2010 N.E.2d 1078 (Ill. 2004). The Beretta court concluded that the City could not establish legal causation in the handgun cases. Beretta, 821 N.E.2d at 1138. As the court explained: [T]he alleged public nuisance is not so foreseeable to the dealer defendants that their conduct can be deemed a legal cause of a nuisance that is the result of the aggregate of the criminal acts of many individuals over whom they have no control. This is one of those “instances in which a party may have contributed in some remote way [to the harm] and yet it is inappropriate to subject that party to tort liability.” Beretta, 821 N.E.2d at 1138; see also Young v. Bryco Arms, 821 N.E.2d 1078 (Ill. 2004) (finding, in action by private plaintiffs, the business practices of gun manufacturers, distributors, and dealers did not constitute a public nuisance because they were not the proximate cause of injuries to individuals shot and killed by third parties); City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 114 (Mo. 2007) (finding governmental plaintiff asserting public nuisance claims must allege proximate causation and identify the specific defendant(s) that made or sold lead pigment allegedly in need of abatement). Some courts, however, have gone the other way, permitting a claim for nuisance in a traditional products liability action. See In re StarLink Corn Prods. Liab. Litig., 212 F. Supp. 2d 828, 846 (N.D. Ill. 2002) (finding manufacturer of genetically modified corn had not only the ability, but the duty, to enforce its customer’s compliance with the EPA regulations and could be liable for public nuisance); City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002) (finding City stated claim for public nuisance against handgun manufacturers, trade associations, and handgun distributor), super- seded by statute as described in City of Toledo v. Sherwin-Williams Co., 2007 WL 4965044 (Ohio Ct. Com. Pl. Dec. 12, 2007). A Wisconsin appellate court allowed a public nuisance claim to proceed against a former lead paint manufacturer, if only on a provisional basis. See City of Milwaukee v. NL Indus., Inc., 278 Wis. 2d 313, 691 N.W.2d 888 (Wis. Ct. App. 2004), pet. for rev. dismissed, 285 Wis. 2d 631, 703 N.W.2d 380 (Wis. Aug. 1, 2005). The City of Milwaukee sued two paint companies to recover costs associated with the City’s abatement of lead paint hazards in homes throughout the city; asserting claims for public nuisance, conspiracy, and restitution. The trial court granted the companies’ motion for summary judgment. On appeal, the manufacturers challenged the public nuisance claim on the grounds of causation and public policy. On the causation question, the appellate court held that evidence concerning pro- motion of lead paint created an issue of fact for the jury as to whether defendants participated in the creation of a public nuisance of childhood lead poisoning. Id. at 326, 691 N.W.2d at 894. The appellate court declined to address defendants’ public policy arguments, finding that those issues were “more appropriately addressed after trial, based on a complete factual record.” At trial, the jury will have the opportunity to determine whether a public nuisance exists, whether defendants’ conduct in promoting the use of lead paint and their sales of lead pigment and paint in the Milwaukee area were substantial factors causing the nuisance, and whether the public nuisance, if one is found, was a cause of the damage sustained by the City. Findings as to the existence of a public nuisance, its cause, and the resulting damages will be material and helpful in evaluating the public policy considerations raised in this case. Id. at 327-28, 691 N.W.2d at 895. At trial, although the jury concluded that lead paint constituted a public nuisance, the jury found that NL Industries did not knowingly contribute to the public nuisance, and the trial court entered judgment against the City of Milwaukee. The City appealed a second time, but lost on appeal.

Public Nuisance—The New Mega Tort v Nilan v 209 See City of Milwaukee v. NL Indus., 315 Wis. 2d 443, 762 N.W.2d 757 (Wis. Ct. App. 2008), pet. for rev. denied, 316 Wis. 2d 719, 765 N.W.2d 579 (Wis. 2009). This time, the appellate court held that liability for intentional public nuisance required proof that the manufacturer anticipated the specific public nuisance found by the jury. Id. at 469, 762 N.W.2d at 770. In addition, evidence supported the jury’s conclusion that the manufacturer did not know that a public nuisance was resulting or was substantially certain to result from the manufacturer’s conduct. Id. at 470-71, 762 N.W.2d at 770. As a result, the Wis- consin appellate court did not address the manufacturer’s policy arguments against the assertion of a public nuisance claim in the context of a products liability case.

V. Potential Advantages to Plaintiffs of Public Nuisance Claims Given the variety of other causes of action available to plaintiffs injured by the use of a product (including strict liability, negligence, failure to warn, etc.), one may wonder what advantage public nuisance holds for plaintiffs’ counsel. There are several. First, an essential requirement of a products liability claim is that the plaintiff must identify the manufacturer whose product caused harm. When product identification is problematic, plaintiffs have frequently turned to collective liability theories; such as market share theory, enterprise liability, or civil conspiracy. For a variety of reasons, those theories have proved largely unsuccessful. Market share liability targets manufacturers who produce a fungible product that injures the plaintiff, and seeks to hold the manufacturers liable in proportion to their respective shares of the market for that product. Most jurisdictions have rejected market share liability. See City of Philadelphia v. Lead Indus. Ass’n, Inc., 994 F.2d 112, 125 (3d Cir. 1993) (“No nationwide consensus that market share liability should be embraced exists, as evidenced by the split of authority among the highest state courts that have addressed this issue.”); Tidler v. Eli Lilly & Co., 851 F.2d 418 (D.C.Cir.1988); Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 75 (Iowa 1986) (rejecting market share on a policy basis and describing theory as a court-constructed insurance plan that requires manufacturers to pay for injuries their product may not have caused); Zafft v. Eli Lilly & Co., 676 N.W.2d 241, 246 (Mo. 1984) (rejecting market share because there is too great a risk that the actual wrongdoer is not before the court); Mizell v. Eli Lilly & Co., 526 F. Supp. 589 (D. S.C.1981) (concluding that “[m]arket share represents a radical departure from the body of products liability law that has been developed in South Carolina”). Public nuisance, however, allows for joint and several liability, with plaintiffs having to show only that one or more of the defendants contributed to the nuisance. See Holbrook v. Cadle Prop. of Conn., Inc., 2000 WL 1872041, at *10 n.34 (Conn. Super. 2000) (finding “common law of public nuisance includes the general rule that everyone who participates in the maintenance of a nuisance is liable jointly and severally”); Cayuga Indian Nation of N.Y. v. Pataki, 79 F. Supp. 2d 66, 73 (N.D.N.Y. 1999) (finding liability under common law of nuisance is joint and several); United States v. Occidental Chem. Corp., 965 F. Supp. 408 (W.D.N.Y. 1997) (holding defendant jointly and severally liable under the common law of public nuisance for disposing of chemical waste); United States v. Valentine, 856 F. Supp. 627, 633 (D. Wyo. 1994) (holding common law of nuisance imposes joint and several liability). Market share liability on the other hand, even if allowed, generally limits a manufacturer’s liability to its pro- portionate share of the relevant market. While public nuisance is not per se a theory of alternative liability, it may operate as such by ensnaring all defendants who substantially participated in creating an alleged nuisance. This is particularly true when the claim is brought by a governmental entity on behalf of the public. For instance, if a

210 v DRI Annual Meeting v October 2010 single plaintiff filed suit alleging that the presence of lead paint in her home was a nuisance, she would still have to prove which defendant manufactured the paint in her home--a task that is usually impos- sible, given that lead paint has not been manufactured for many decades. On the other hand, if a city brings a public nuisance claim on behalf of all homeowners alleging that the collective presence in all homes of lead paint constitutes a public nuisance, the city may have to show (if allowed by the court) only that all manufacturers contributed to the overall presence of lead paint, thereby contributing to the nuisance. That might be accomplished by naming all manufacturers who sold the product in a geo- graphic area. That was exactly the approach taken by the attorney general of Rhode Island in Whitehouse v. Lead Indus. Ass’n, Inc., 2001 WL 345830 (R.I. Super. 2001) (trial court’s ruling on motions to dismiss the complaint), overruled, State v. Lead Industries Ass’n, Inc., 951 A.2d 428 (R.I. 2008). The trial court permitted that lawsuit to go forward, and a bifurcated trial was held in late 2002, in which the first phase of the trial addressed the question, “Does the presence of lead pigment in paint and coatings in homes and public buildings constitute a public nuisance?” Whitehouse v. Lead Indus. Ass’n, Inc., 2002 WL 475284 (R.I. Super. 2002). The jury hung 4-2 in defendants’ favor. The Rhode Island case went before a jury again in late 2005, with the trial lasting some four months. This was reportedly the longest civil jury trial in the state’s history. State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 434 (R.I. 2008). The trial judge instructed the jury to determine “whether the cumu- lative presence of lead pigment in paints and coatings in or on buildings throughout the state of Rhode Island constitutes a public nuisance.” Id. at 442. He defined public nuisance as “something that unreasonably interferes with a right common to the general public. It is something that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community.” Id. Based on those instructions, the jury found the existence of a public nuisance and further found that three defendants should be ordered to abate the public nuisance. After many years of lead paint litigation, this was the first time that a jury verdict imposed liability on lead pigment manufacturers for creating an alleged public nuisance. Id. at 434. On appeal, the Rhode Island Supreme Court rejected the imposition of liability against product manufacturers based on a public nuisance theory. The court concluded that “[e]xpanding the definition of public right based on the allegations in the complaint would be antithetical to the common law and would lead to a widespread expansion of public nuisance law that never was intended ….” Id. at 453. The New Jersey Supreme Court reached the same conclusion when rejecting a similar lead pigment public nuisance action: “[W]ere we to conclude that plaintiffs have stated a claim, we would necessarily be concluding that the conduct of merely offering an everyday household product for sale can suffice for the purpose of interfering with a common right as we understand it. Such an interpretation would far exceed any cognizable cause of action.” In re Lead Paint Litig., 924 A.2d 484, 501 (N.J. 2007). Public nuisance has also substituted as a cause of action for governmental entities who would, otherwise, lack standing to bring traditional products liability claims. See Camden County v. Beretta, 123 F. Supp. 2d 245 (D. N.J. 2000), aff’d, 273 F.3d 536 (3d Cir. 2001). Finally, public nuisance claims can overcome a statute-of-limitations defense if the nuisance is deemed to constitute a “continuing” nuisance. State v. Swartz, 723 N.E.2d 1084, 1088 (Ohio 2000) (holding that, where one has created a nuisance by unlawfully diverting watercourse to the injury of others and permits it to remain, then so long as it remains and is within control of the actor, the nuisance constitutes a continuing course of conduct tolling the limitations period); see also Graveley Ranch v. Scherping, 782 P.2d 371, 373 (Mont. 1989) (finding that for nuisance that is continuing, when the Public Nuisance—The New Mega Tort v Nilan v 211 injury is not complete, so that damages can be measured in one action at the time of the creation of the nuisance, but depends upon its continuance and uncertain operation of the seasons or on the forces set in motion by it, the statute will not begin to run until actual damage has resulted therefrom).

VI. Defeating Public Nuisance Claims Given the variety and complexity of public nuisance actions, the number and type of defenses are equally expansive. The defenses to public nuisance claims vary substantially by jurisdiction, but the following are the primary defenses.

A. Preemption and Prevailing Statutory Schemes There may be a statutory or regulatory scheme that limits the use of public nuisance counts. Some courts addressing public nuisance suits against product manufacturers have acknowledged that comprehensive legislation of a certain activity may require judicial restraint in declaring an activity to be a public nuisance if the activity complies with the regulations. See City of Gary ex rel. King v. Smith & Wesson Corp., 776 N.E.2d 368, 381 (Ind. App. 2002) (finding that “if an activity causes harm that would otherwise constitute a public nuisance, but the activity has been authorized by the legislature, then the author of the activity cannot be held legally responsible for public nuisance”), opinion vacated by, 801 N.E.2d 1222 (Ind. 2003) (allowing city to proceed with public nuisance claim against handgun manufacturers, distributors, and dealers). Some states, such as Connecticut, have statutes that limit the use of nuisance by mandating that one cause of action “shall be in lieu of all other claims including actions of negligence, strict liability and warranty” against product sellers for harm caused by a product. Conn. Gen. Stat. §52-572n(a); see also N.J. Stat. §2A:58C-2. Check to see, however, whether such a statute replaces only common-law claims but still permits statutory claims. See, e.g., William Martens PPA v. Wild Bill Surplus Inc., 1995 WL 384672 (Conn. Super. 1995) (holding statute replaces all actions grounded in negligence but does not replace statutory claims). If the nuisance cause of action is statutory, it may survive a products liability statute. Even when a statute appears to support a plaintiff’s legal theory, proper interpretation of the statute may defeat a public nuisance claim. In one such case, the City of New York sued on-line ciga- rette dealers who were mailing cigarettes from other states. City of New York v. Smokes-Spirits.com, Inc., 911 N.E.2d 834, 12 N.Y.3d 616 (N.Y. June 9, 2009) (2009 WL 1585844). The City claimed that the pur- chase of cigarettes over the Internet posed a risk to public health and constituted a public nuisance. But it admitted that mailing cigarettes “is not illegal or even traditionally deemed offensive.” Id. at 840, 12 N.Y.3d at 624. The City requested an injunction against further shipments and sought to recover costs incurred in abating the alleged public nuisance. The nuisance claim was predicated upon a state public health law declaring that mailing cigarettes into the state posed a threat to public health. Treating the issue as one of statutory interpretation, the court found that the legislature did not contemplate that its public health law could be used as a basis for public nuisance claims. It therefore rejected a public nuisance claim for the out-of-state shipment of cigarettes into New York. Id. at 843-44, 12 N.Y.3d at 629-30. Another recent case, in the commercial litigation context, confirms the elasticity of nuisance claims; but it also reaffirms the limits on the reach of public nuisance law. The City of Cleveland asserted a public nuisance claim against lenders involved in the subprime loan market. The lenders had securitized subprime loans into mortgage-backed securities. The City sued them for the cost of deal- ing with foreclosed properties and a decrease in the City’s property tax revenues. See City of Cleveland

212 v DRI Annual Meeting v October 2010 v. Ameriquest Mortgage Secs., Inc., 621 F. Supp. 2d 513, 515-16 (N.D. Ohio 2009). Granting the lenders’ motions to dismiss the complaint, the court held that the City’s public nuisance claim failed as a mat- ter of law because (1) it was preempted by an Ohio statute regulating loans and credit; (2) it was barred by the economic loss rule; (3) the City’s allegations failed to demonstrate an unreasonable interference with a public right; and (4) the City’s allegations were insufficient to demonstrate that defendants’ conduct was the proximate cause of its alleged damages. Id. at 536.

B. Requiring Interference with a Right Common to the General Public The law of public nuisance is intended to protect collective, not individual, rights. The tort is limited to instances where there has been “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts §821B(1) (1979). A “right common to the general public” does not exist based on the number of people affected. Instead, the right “is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.” Id., cmt. (g). For example: [T]he pollution of a stream that merely deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with their land does not for that reason alone become a public nuisance. If, however, the pollution prevents the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of the community of the right to fish, it becomes a public nuisance. Id.; see also Ganim v. Smith & Wesson Corp., 780 A.2d 98, 132 (Conn. 2001) (“The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.”) [internal quotation omitted]. The limitation of public nuisance to rights “common to the general public” can be fatal to product-based public nuisance claims. The State of Rhode Island, in its lawsuit against former lead pigment manufacturers, failed to allege an unreasonable interference with a public right. State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 453-55 (R.I. 2008). The State’s complaint alleged that “[d]efendants created an environmental hazard that continues and will continue to unreasonably interfere with the health, safety, peace, comfort or convenience of the residents of the [s]tate, thereby constituting a public nuisance.” Id. at 453. The Rhode Island Supreme Court declined the State’s invitation to expand the definition of public right in order to avoid an unwarranted and widespread expansion of public nuisance law. Id.; see also In re Genetically Modified Rice Litig., 666 F. Supp. 2d 1004, 1018 (E.D. Mo. 2009) (dismissing public nuisance claim because there was no evidence of “the sort of public harm or negative effect on the entire community that public nuisance law was developed to remedy”).

C. Lack of Control over the Alleged Nuisance or Its Cause Although some courts have rejected the argument that an inability to presently control or abate the nuisance prevents application of public nuisance liability, many courts agree that such control is important. See, e.g., Friends of Sakonnet v. Dutra, 738 F. Supp. 623, 633-34 (D.R.I. 1990) (“The para- mount question [in determining liability for public nuisance] is whether the defendant was in control of the instrumentality alleged to have created the nuisance when the damage occurred.”); City of Man- chester v. National Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986) (holding the term nuisance may be defined broadly, “[b]ut liability for damage caused by a nuisance turns on whether the defendants were in control over the instrumentality alleged to constitute the nuisance”).

Public Nuisance—The New Mega Tort v Nilan v 213 The notion that “after the time of manufacture and sale, [manufacturers] no longer [have] the power to abate the nuisance” carries some weight even with courts that have permitted public nuisance claims to go forward. See City of Manchester, 637 F. Supp. at 656; see also In re StarLink Corn Prods. Liab. Litig., 212 F. Supp. 2d 828, 846 (N.D. Ill. 2002) (finding manufacturer of genetically modified corn had not only the ability, but the duty, to enforce its customer’s compliance with the EPA regulations and could be liable for public nuisance); Appletree Square 1 Ltd. v. W.R. Grace & Co., 815 F. Supp. 1266, 1274 n.13 (D. Minn. 1993) (finding “nuisance law does not apply in a case such as this where the alleged wrongdoer no longer owns or controls the property from which the nuisance arises. Once [the defendant] manufactured and sold the fireproofing to the original owner … it no longer controlled the fireproofing and consequently a nuisance action cannot be maintained against it.”), aff’d, 29 F.3d 1283 (8th Cir. 1994); Roseville Plaza Ltd. v. U.S. Gypsum Co., 811 F. Supp. 1200, 1210 (E.D. Mich. 1992) (“This case involves a commercial transaction where defendant gave up ownership and control of its product … at the time of sale. In so doing, plaintiff became the exclusive owner and possessor of the product, and defendant thereafter lacked any legal right to abate whatever hazard its product may have posed.”). In City of Bloomington v. Westinghouse Elec. Corp., 891 F.2d 611 (7th Cir. 1989), a city brought suit against Monsanto, claiming that Monsanto should be liable for public nuisance for its manufacture and sale of PCBs. Monsanto had stopped manufacturing PCBs in 1977. Id. at 613. One of Monsanto’s customers, Westinghouse, was responsible for releasing PCBs into the environment. Monsanto had not participated in carrying on the alleged nuisance. The court noted that the record failed to disclose any evidence that Monsanto had the right to control the PCBs beyond the point of sale and explained that, “when alerted to the risks associated with PCBs, Monsanto made every effort to have Westinghouse dis- pose of the chemicals safely.” Id. at 614. An inability to exercise control over and abate an alleged nuisance, such as when a product manufacturer relinquishes control over its product in the stream of commerce, has led a number of courts to reject public nuisance claims against product manufacturers and sellers. See, e.g., State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 449 (R.I. 2008) (“As an additional prerequisite to the imposition of liability for public nuisance, a defendant must have control over the instrumentality causing the alleged nuisance at the time the damage occurs.”); In re Lead Paint Litig., 924 A.2d 484, 501-502 (N.J. 2007); City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 422 (3d Cir. 2002); Appletree Square 1 Ltd. P’ship v. W.R. Grace & Co., 815 F. Supp. 1266, 1274 n.13 (D. Minn. 1993), aff’d 29 F.3d 1283 (8th Cir. 1994); Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 522 (Mich. Ct. App. 1992); City of Man- chester v. National Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986). Compare City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1132 (Ill. 2004) (lack of control over the nuisance instrumentality is not an absolute bar to public nuisance liability but instead is “a relevant factor in both the proximate cause inquiry and in the ability of the court to fashion appropriate injunctive relief”).

D. Standing Consider whether the plaintiff alleging public nuisance has standing to pursue the claim. His- torically, individual plaintiffs did not and could not represent the king, “and the vindication of royal rights was properly left to his duly constituted officers.” Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 1007 (1966). “Courts wanted to limit access so that their time would not be consumed with complaints about public matters from a multitude of people who alleged they suffered some damage.” Louisiana. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1047 n.28 (5th Cir. 1985).

214 v DRI Annual Meeting v October 2010 The modern incarnation of this rule is found in statutes specifying those who are authorized to bring public nuisance claims. In order to pursue an action for public nuisance, a plaintiff must “have standing to sue as a representative of the general public.” In re Lead Paint Litig., 924 A.2d 484, 497-98 (N.J. 2007). In that regard, a private plaintiff can pursue an action for public nuisance only if the private plaintiff demonstrates a “special injury” and has “suffered harm of a kind different from that suffered by other members of the public.” Id. at 498 (quoting Restatement (Second) of Torts §821C(1) (1979)). A public entity proceeding against the one in control of an alleged nuisance may seek only an order of abatement, at the expense of the one in control of the nuisance, and cannot seek damages. Id. at 499; see also Ganim v. Smith & Wesson Corp., 780 A.2d 98 (Conn. 2001) (finding city’s charter permitted a public nuisance claim only for the violation of a specific ordinance); Garland Grain Co. v. D-C Home Owners Imp. Ass’n, 393 S.W.2d 635, 639 (Tex. App. 1965) (holding duty of prohibiting pollution of public waters is vested exclusively in the state). In addition, examine the claim for damages to determine whether the damages sought are available in a public nuisance action. The New Jersey Supreme Court, for example, rejected an attempt by governmental plaintiffs to recover damages in a public nuisance action against former manufacturers of lead paint. In re Lead Paint Litig., 924 A.2d 484, 502 (N.J. 2007). It held that money damages “fall outside the scope of remedies available to a public entity plaintiff.” Id. In addition, it stated that private plaintiffs must “identify a special injury as to which an award of money damages may attach.” Id.

E. Statutes of Repose and Limitation Statutes Consider whether applicable statutes of repose may supply a defense. In Russo Farms, Inc. v. Vineland Board of Education, 675 A.2d 1077, 1080-81 (N.J. 1996), the plaintiffs alleged that construc- tion of a new school across the street from the plaintiffs’ property allegedly damaged the property. The plaintiffs’ expert opined that the contractor and architect who built the school ignored the design speci- fications and constructed the drainage basins improperly. Id. Instead of flowing into the basins, rain- water would run down the driveway, across the street, combine with other water in the street, and flood the plaintiffs’ property. Id. The defendants argued that the plaintiffs’ claims, including one for nuisance, were barred by New Jersey’s statute of repose. The court agreed and held that the statute of repose barred the claims. Id. at 1094. Conversely, bear in mind that statutes of limitation typically will not provide applicable defenses where the nuisance is continuing. Limitation statutes are also inapplicable against a plaintiff- state whose law recognizes the nullum tempus doctrine; where the “crown” or state is not subject to statutes of limitation because “no time runs against the king” (nullum tempus occurrit regi).

F. Public Policy The potential for public nuisance to displace products liability law causes great concern for many courts. Simply put, applying nuisance theories to the manufacture and sale of products is far beyond traditional public nuisance law. A New York appellate court aptly described the public policy problems involved in allowing public nuisance claims against product manufacturers. Allowing a public nuisance claim to proceed against firearms manufacturers would “likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array

Public Nuisance—The New Mega Tort v Nilan v 215 of other commercial and manufacturing enterprises and activities.” People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91, 96, 761 N.Y.S.2d 192, 196 (App. Div. 2003), appeal denied, 801 N.E.2d 421, (N.Y. 2003). The court recognized the inherent vagueness and flexibility of public nuisance concepts: All a creative mind would need to do is construct a scenario describing a known or per- ceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets and/or sells its nondefective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born. Id.; see also Johnson County, Tenn. v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D. Tenn. 1984) (finding that to allow “the plaintiff to bring this action under a nuisance theory would convert almost every products liability action into a nuisance claim”). Traditional nuisance law was neither concerned with, nor applied to, cases involving the manufacture or sale of products. Many courts have concluded that such a radical shift in the law, if it is to be made at all, must be made by the legislature. The New Jersey Supreme Court, for instance, ruled that public nuisance suits brought by 26 municipalities against lead pigment manufacturers should be viewed as products liability actions that could not survive outside the scope of New Jersey’s products liability jurisprudence: [T]he very meaning of conduct in the public nuisance realm is separate, and entirely different, from the only conduct of these defendants. Fundamental to this aspect of our analysis is the fact that we here address an ordinary, unregulated consumer product that defendants sold in the ordinary course of commerce. In public nuisance terms, then, were we to conclude that plaintiffs have stated a claim, we would necessarily be concluding that the conduct of merely offering an everyday household product for sale can suffice for the purpose of interfering with a common right as we understand it. Such an interpretation would far exceed any cognizable cause of action. In re Lead Paint Litig., 924 A.2d 484, 433-34 (N.J. 2007). Furthermore, claims of public nuisance can extend liability even beyond theories such as market share liability, in that liability for nuisance has been held to be joint and several. See, e.g., Holbrook v. Cadle Prop. of Conn., Inc., 2000 WL 1872041, at *10 n.34 (Conn. Super. 2000) (finding “common law of public nuisance includes the general rule that everyone who participates in the maintenance of a nuisance is liable jointly and severally”); United States v. Occidental Chem. Corp., 965 F. Supp. 408 (W.D.N.Y. 1997) (holding defendant jointly and severally liable under the common law of public nuisance for disposing of chemical waste); United States v. Valentine, 856 F. Supp. 627, 633 (D. Wyo. 1994) (finding common law of nuisance imposes joint and several liability). Thus, instead of holding manufacturers liable in proportion to the share of the market they enjoyed, each would be liable for the entire amount of the verdict. Particularly for those jurisdictions that have rejected market share, a public nuisance claim can present a new pathway to a collective liability theory. Public policy concerns led the Illinois Appellate Court to reject the City of Chicago’s public nuisance claims against former manufacturers of lead pigment and their alleged successors. See City of Chicago v. American Cyanamid Co., 823 N.E.2d 126 (Ill. Ct. App. 2005), rev. denied (Ill. May 25, 2005). “Plaintiff is attempting to do what the Smith decision forbids: making each manufacturer the insurer for all harm attributable to the entire universe of all lead pigments produced over a century by many.”

216 v DRI Annual Meeting v October 2010 Id. at 125-26. (In Smith, the Illinois Supreme Court rejected market share liability. Smith v. Eli Lilly & Co., 560 N.E.2d 324 (Ill. 1990)). We believe the same public policy concerns, applied to wrongdoers in tort cases, apply to cases involving a public nuisance. These public policy concerns dictate that legal cause cannot be established with respect to defendants in the present case that produced a legal product decades ago that was used by third parties who applied the product to surfaces in Chicago. Moreover, the legislature has enacted the Lead Poisoning Prevention Act (410 ILCS 45/1 et seq. (West 2000)), which places the responsibility upon landowners to reme- diate the effects of deteriorated lead-based paint. We therefore hold that the conduct of defendants in promoting and lawfully selling lead-containing pigments decades ago, which was subsequently lawfully used by others, cannot be a legal cause of plaintiff’s complained- of injury, where the hazard only exists because Chicago landowners continue to violate laws that require them to remove deteriorated paint. City of Chicago, 823 N.E.2d at 129.

G. Lack of Causation Some plaintiffs have turned to alternative liability theories when they can identify no specific product or manufacturer responsible for causing the harm they allege. They have relied upon collective liability theories, targeting entire industries, in an attempt to overcome the identification requirements in products liability cases. Yet, courts continue to require proof of product identification as an aspect of direct and proximate causation. The failure to link a particular defendant, and a product it manufactured, to specific harm can be an insurmountable barrier to a public nuisance claim. This proved fatal in an Illinois lead paint case. There, the appellate court ruled that the City of Chicago could not establish causation because it could not identify any specific manufacturer’s product at any specific location. See City of Chicago v. American Cyanamid Co., 823 N.E.2d 126, 125-26 (Ill. Ct. App. 2005), rev. denied (Ill. May 25, 2005). Because the City could identify no specific harm caused by a particular defendant’s product, its public nuisance claim could not proceed.

H. Political Questions and Nonjusticiability Recent public nuisance targets include automobile manufacturers, oil companies, and utility companies accused of contributing to global warming. There is a split of authority among courts con- fronting the issue of global warming as an alleged public nuisance. Some courts have declined to weigh in, leaving resolution of the dispute to the political arena. Other courts have allowed nuisance claims to go forward based on allegations that the defendants’ activities are contributing to global warming. In People of State of California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), the State of California sued six automakers alleging that they had created and contributed to the “public nuisance” of global warming. The attorney general alleged that global warming damaged the state by, among other things, harming the drinking water supply because of a reduced yearly snow pack, as well as causing coastlines to erode because of rising sea levels. The court ruled that under the political question doctrine, plaintiff’s federal common-law claim was not justiciable because it required the court to make a policy determination best left to the elected branches. Id. at *13; accord Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal.) (granting motions to dismiss nuisance claims against 24 oil, energy, and utility companies; sued for their alleged contributions to global warming). Public Nuisance—The New Mega Tort v Nilan v 217 The Second Circuit reached the opposite result in lawsuits seeking abatement of the “public nuisance” of “global warming.” Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, at 392-93 (2d Cir. 2009). The plaintiffs included eight states, the city of New York, and several nonprofit land trusts. They brought a nuisance claim against five electric utilities as the largest emitters of carbon dioxide in the country. The trial court ruled that the suit raised nonjusticiable political questions requiring “identification and balancing of economic, environmental, foreign policy, and national security interests.” Id. at 320. The district court dismissed the complaints on the ground that the actions presented nonjusticiable political questions that are consigned to the political branches, not the judiciary. Id. On appeal, the Second Circuit reversed. It disagreed that the actions presented nonjusticiable political questions and allowed the case to proceed under the federal common law of nuisance. Id. at 392-93. On August 2, 2010, the defendants filed a petition asking the Supreme Court to review the Sec- ond Circuit’s decision. A panel of the Fifth Circuit also reversed the dismissal of a global warming public nuisance claim against oil and power companies and allowed the plaintiffs’ public nuisance claim to go forward. Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009). However, the Fifth Circuit granted an en banc hearing, vacating the panel’s decision. 598 F.3d 208 (5th Cir. 2010). But, in a particularly odd twist, nine judges recused themselves, such that the en banc court lost its quorum, thereby dismissing the appeal and leaving the trial court’s dismissal in place. This result left the plaintiffs with only their right to petition the Supreme Court. 2010 U.S App. Lexis 11019 (May 28, 2010). Other courts have allowed public nuisance claims to go forward in ground water contamination cases, concluding that the political question doctrine did not preclude the public nuisance claim. See In re MTBE Prods. Liab. Litig., 438 F. Supp. 2d 291, 304 (S.D.N.Y. 2006) (holding public nuisance actions by municipalities against gasoline producers for the alleged contamination of groundwater by Methyl Ter- tiary Butyl Ether (“MTBE”), a gasoline additive, not precluded by the political question doctrine). However, the Fourth Circuit recently vacated an injunction, based on a public nuisance claim, requiring emission controls at four Tennessee Valley Authority plants. In that case, the Fourth Circuit concluded: [W]hile public nuisance law doubtless encompasses environmental concerns, it does so at a level of generality as to provide almost no standard of application. If we are to regulate smokestack emissions by the same principles we use to regulate prostitution, obstacles in highways, and bullfights, we will be hard pressed to drive any manageable criteria. State of N.C. v. TVA, 2010 U.S. App. Lexis 15286 (July 26, 2010).

VII. The View Is Still Cloudy As to Whether Public Nuisance Claims Will Gain a Foothold in Product Liability and Global Warming Actions A majority of courts have rejected efforts to pursue public nuisance claims where a case is, in actuality, a products liability action. However, not all courts have done so and several major cases are working their way through the judicial system. The high tide of plaintiffs’ public nuisance lawsuits had been the Rhode Island jury verdict in a lead pigment lawsuit. The reversal of that verdict by the Rhode Island Supreme Court reaffirmed the limits on public nuisance claims. Appellate decisions in New Jer- sey, Illinois, and Missouri affirmed the view that public nuisance claims cannot be used as a substitute for what are, in reality, products liability claims. Yet, product manufacturers and sellers continue to face public nuisance complaints. 218 v DRI Annual Meeting v October 2010 One case to watch is a lead paint lawsuit recently remanded by the California Supreme Court to the trial court. Most recently, the California Supreme Court held that governmental entities can retain private contingent fee counsel in a public nuisance case, as long as the government’s staff attorneys are fully in charge of all aspects of the case. County of Santa Clara v. Atlantic Richfield Co., 2010 Cal. Lexis 7241 (July 26, 2010). In that case, governmental entities in California are suing former manufacturers of lead pigment, alleging a public nuisance caused by lead paint. The trial court sustained defendants’ demurrers to the public nuisance claim and dismissed the action. County of Santa Clara v. Atlantic Rich- field Co., 137 Cal. App. 4th 292, 298, 40 Cal. Rptr. 3d 313, 319 (Cal. App. 6th Dist., 2006), pet. for rev. denied (Cal. June 21, 2006). The intermediate appellate court reversed, holding that the governmental plaintiffs can pursue a public nuisance action on behalf of the people of California against former lead manufacturers. Id. at 304-305, 40 Cal. Rptr. 3d at 324-25. Plaintiffs cannot, however, seek damages on their own behalf because the damage claims are encompassed within products liability law. Id. at 313, 40 Cal. Rptr. 3d at 331. The flexibility of public nuisance claims is being used in other types of cases, such as Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540, 87 Cal. Rptr. 3d 602 (Cal. App. 2d Dist. 2009), rev. denied (Cal. Apr. 15, 2009). In that case a father filed a public nuisance claim, on behalf of his asthmatic daugh- ter, against an apartment complex management company for the company’s failure to limit second- hand smoke in the outdoor common areas of the apartment complex where the family lives. Id. at 1543, 87 Cal. Rptr. 3d at 604. The management company prohibits smoking in all indoor areas but permits smoking in the outdoor common areas to accommodate tenants and guests who smoke. The trial court dismissed the action, but the appellate court ruled that the complaint adequately states a claim for public nuisance. The company is now facing additional defense costs and potential liability for refusing to ban smoking in outdoor common areas. Id. at 1543, 87 Cal. Rptr. 3d at 604-605.

VIII. Conclusion The viability of public nuisance claims in mass tort and global warming cases is still an open question. Although the trend across the country is to maintain the separation between public nuisance and products liability law, major cases are moving forward that could provide momentum for public nuisance claims. The world of public nuisance could change dramatically if the United States Supreme Court grants certiorari in a global warming case later this year.

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