The Supreme Courts of New Jersey and Ohio will soon make their decisions on the viability of public nuisance lawsuits against paint companies that once produced lead paint.
The decisions will come on the heels of this week's Missouri court ruling that six paint companies are not liable for the cost of lead paint cleanup in St. Louis. The city had sued, alleging the presence of lead paint still on several buildings created a public nuisance.
Critics say public nuisance claims are a way around the shortcomings of a products liability case, like the now expired statute of limitations. Lead paint was outlawed in 1978.
"The defendants have long argued that this distortion of nuisance law - in which you don't have to identify the manufacturer that made the product - is inconsistent with fundamental principles of our legal system," said Bonnie J. Campbell, former Attorney General of Iowa and spokesperson for the Missouri defendants.
Lead paint manufacturers are doing battle against a group of government entities in New Jersey's Supreme Court. The case was heard in November and a ruling is expected Friday.
Twenty-two municipalities and four counties are trying to sue Atlantic Richfield Co., NL Industries, Millenium Inorganic Chemicals, Sherwin-Williams, American Cynamid, Cytec Industries, ConAgra and DuPont. The Supreme Court must decide if towns and counties have inherent police powers to stop a public nuisance.
Plaintiffs firm Motley Rice is representing the municipalities and counties. It is credited with the idea of using a public nuisance claim to sue paint companies and has been successful in each of its battles in Rhode Island, where the first state-powered suit was filed.
In that case, three companies have been found liable for cleanup -- estimated at billions -- in Rhode Island. They have appealed to the state's Supreme Court.
Ohio Attorney General Marc Dann followed Rhode Island's lead and filed a state-powered suit of his own, though it is disputed if he is able.
The General Assembly is suing over the veto of Senate Bill 117, a tort reform bill that would prevent nuisance lawsuits against the paint manufacturers. It also restricted claims for the costs of cleaning up lead paint in older buildings.
It was passed by the General Assembly shortly before former Gov. Bob Taft left office to make way for new Gov. Ted Strickland.
The Assembly says Taft did not act on the bill during the 10-day period after it was passed by the Legislature, effectively making the bill a law when it was sent to Brunner's office.
However, the two sides are arguing on when that 10-day period started. Strickland claims he still had time to veto the bill when he took office.
Strickland did veto the bill in January, and was congratulated by Dann, who filed his public nuisance lawsuit against the paint companies earlier this year.
The case was heard on May 1, and, according to the blog Law and More, a decision is expected Wednesday morning.
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