State was Right to Dismiss Lead Paint Lawsuit
Last
week, newly elected Ohio Attorney General Richard Cordray announced
that his office was dismissing the public nuisance lawsuit the state
had filed against lead paint manufacturers. Cordray's decision makes
good sense and shows that, as he put it, "not every problem can be
solved by a lawsuit."
The lead paint lawsuit craze swept through
Ohio in 2006-07, following a billion-dollar verdict against lead paint
manufacturers in Rhode Island. Several Ohio cities, including Columbus,
Lancaster, Toledo, Dayton, Akron, East Cleveland, and Cincinnati sued
lead paint manufacturers, including the Ohio-based Sherwin-Williams
Company, and former Attorney General Marc Dann subsequently filed suit
against the pain manufacturers on behalf of the state of Ohio in spring
2007.
The cities and state argued that lead paint on houses and other residential buildings caused a "public nuisance" that resulted in thousands of children being poisoned. The cases provided little or no details about specific individuals' injuries being caused by any specific paint manufacturer.
Public nuisance is a relatively obscure and narrow legal theory that permits a government entity to take action to stop or abate the impact of specific unreasonable behavior that causes injury to a public right. For example, under the public nuisance theory, a city may take action to stop someone from blasting their radio when people are picnicking in a public park or to force responsible parties to abate the damage caused by their dumping of sewage into a public river.
Public nuisance law, however, has little applicability in the lead paint context. Lead paint is only dangerous when it peels or flakes, releasing a fine dust that when ingested can cause lead poisoning. Proper maintenance of older buildings over the last three decades would have dramatically reduced the threat of lead poisoning. Most paint companies, including Sherwin-Williams, stopped selling lead-based paints long before the federal government banned its use in 1978. Moreover, rates of lead poisoning have dramatically dropped in recent decades due to many factors beyond the elimination of lead paint, including reductions in acceptable levels of lead in gasoline and drinking water.
Misusing public nuisance law as a means to shake down paint companies for selling, what was at the time, a legal product more than forty years ago, ignores traditional legal standards for liability. Such litigation also disregards the negligence of owners who failed to maintain their properties in a reasonable fashion, especially in light of the well-known threat caused by allowing buildings with lead paint to deteriorate.
In late 2006, in the face of
increased litigation, the Ohio General Assembly passed a law making
clear that existing laws intended for these types of claims against
product manufacturers to be filed as traditional product liability
claims, not public nuisance lawsuits. This way, the injured plaintiff
would have to meet traditional liability standards including showing
that a company's product was defective and actually caused a specific
injury, and such claims would be subject to applicable statutes of
limitations.
Ultimately, because there is such little applicability for the doctrine of public nuisance in the lead paint context, the Rhode Island Supreme Court overturned the verdict there, and courts in other states dismissed similar lead paint lawsuits as well. Recognizing the weakness of their cases, Ohio's cities, including Columbus, dismissed their lawsuits during the last several months, leaving the state's claim as the sole remaining lead paint lawsuit in Ohio.
Cordray's decision to dismiss the state's case sends the right message. While the attorney general's office is committed to protecting consumers, it will not misuse legal doctrines and waste taxpayer dollars on lawsuits the state is unlikely to win. Moreover, in the current economic climate, Ohio's businesses need to know they will not be hauled into court and have to spend millions of dollars defending against government-sponsored litigation involving legal products they produced several decades ago.
David J. Owsiany is the senior fellow in legal studies for the Buckeye Institute.
