A judge dismissed Delaware Attorney General Kathy Jennings’ lawsuit against Monsanto and two other companies over PCB pollution, reaffirming the legal holding that public nuisance law isn’t applicable to the sale of legal products.
In a decision citing her previous ruling dismissing the AG’s public nuisance lawsuit against opioid producer Purdue Pharma, Delaware Superior Court Judge Mary Johnston said the state’s case failed because “product claims are not encompassed within the public nuisance doctrine.”
The decision adds to court rulings rejecting the idea of using public nuisance law to obtain money from the producers of legal products. Earlier this month, a federal judge in West Virginia concluded that state’s law – similar to nuisance law in most other states – doesn’t allow for lawsuits over the sale of opioids. Last year, the Oklahoma Supreme Court threw out a judge’s $465 million public nuisance verdict against Johnson & Johnson, saying it would otherwise “create unprincipled liability for product manufacturers.”
Jennings sued Monsanto, Solutia and Pharmacia in September 2021, accusing them of creating a public nuisance by selling PCBs that ultimately leached into the environment. The defendants moved to dismiss, citing Judge Johnston’s 2019 decision dismissing similar nuisance claims against Purdue and other opioid manufacturers and distributors. In that case, the judge ruled that defendants must control the thing that allegedly caused the nuisance in order to become liable. Delaware courts have rejected nuisance suits against gun manufacturers for similar reasons.
Judge Johnston also dismissed the state’s claims of trespass and unjust enrichment, ruling in the case of trespass that the state didn’t own the property that became contaminated with PCBs.
Despite a growing number of legal victories against public nuisance claims, opioid distributors and Johnson & Johnson agreed to a $26 billion settlement with states and municipalities. In her 2019 decision, Judge Johnston allowed negligence and consumer fraud claims against the industry to proceed.