BuckeyeBlog

The Columbus Dispatch reported today that the “city of Columbus has dropped its lawsuit against former lead paint manufacturers after the Rhode Island Supreme Court last week shot down the legal argument the city was pursuing.” Marc Kilmer reported on the Rhode Island Supreme Court’s decision last week, pointing out the fallacy of trying to hold paint manufacturers liable for creating a “public nuisance” by selling paint that contained lead several decades ago. In fact, I suggested in a Buckeye Institute Viewpoint a year and a half ago that the city of Columbus should drop the lawsuit. I am glad the city attorneys have come to their senses. Now, the state should follow Columbus’ lead on lead paint and dismiss its similarly bogus lawsuit.

The Columbus Dispatch recently published a couple of excellent editorials, one today and another on Saturday, regarding two issues we covered here at Buckeye Blog last week. Today’s editorial deals with the bogus lead paint lawsuits. The editorial makes the same points we made last week that holding lead paint companies liable for a “public nuisance” for selling a product that was, at the time, completely legal and was not known to be dangerous, is inconsistent with prevailing legal norms. Moreover, it lets the property owners, who let the buildings fall into disrepair, off the hook.

The Dispatch editorial provides:

The paint companies aren’t responsible for what people do today with a product that was made decades ago, while it was still legal to make. And that’s what the Rhode Island decision boiled down to.

First, the court ruled, even if lead paint has harmed a lot of people in their homes, that doesn’t add up to ‘interfering with a public right,’ which is a prerequisite for a public-nuisance case. That’s commonly understood as affecting the air, a public road or a waterway, robbing the public of safe use of those things. One might bring a public-nuisance action against a giant pig farm that creates a constant foul smell or a company that dumped toxic chemicals in a river.

Another critical prerequisite of a public-nuisance action is control: The defendant has to have the instrument of harm under its control when the harm occurs. The paint companies relinquished any control over those gallons of lead paint decades ago when the consumers bought them. What has happened to the paint since can’t be those companies’ responsibility.

The tragedy is that children still are being poisoned by lead paint in 2008.

But states and cities looking for a giant payout to help them clean up the mess need to remember where the fault really lies: with the homeowners and landlords who have neglected to replace this paint, forcing vulnerable children to live in such conditions.”

Additionally, Saturday’s Dispatch editorial on the recent sentencing of super-lawyer Dickie Scruggs to five years in prison noted his ironic downfall was related to his disregard for the law, similar to that of Elliott Spitzer. Something we pointed out last week as well.

With the recent sentencing of super-plaintiffs’ attorney Dickie Scruggs to five years in prison for conspiring to bribe a judge, another chapter in the disturbing and continuing saga of “regulation through litigation” has been written.

In recent years, state attorneys general have taken on an expanded role in using litigation as a means of achieving public policy goals, usually by filing lawsuits against businesses or industries that the AGs see as unpopular and easy targets. In the process, the AGs often enlist personal injury trial lawyers to get into the act. The most prominent case was the state-sponsored tobacco litigation in the 1990’s. Then-Mississippi AG Mike Moore hired Scruggs to assist with the lawsuit against tobacco companies that led to a settlement where the companies paid more than $200 billion to 46 states, including Ohio. It is estimated that Scruggs received somewhere between $500 to $800 million from the tobacco settlement. The success of the tobacco litigation has led to a trend of AGs misusing various legal theories in order sue businesses that produce or sell goods or services that are completely legal.

The now disgraced Elliot Spitzer was one of the most egregious abusers of his office when he was New York’s AG. He brought several questionable lawsuits, including one against out-of-state gun manufacturers for causing gun violence and another against out-of-state utilities for causing global warming. Spitzer then used these high-profile cases as a stepping stone for his run for New York governor. Similarly disgraced Marc Dann modeled his campaign for Ohio AG after Spitzer’s approach of threatening litigation to achieve political ends.

In the eyes of these activist AGs and their trial lawyer accomplices, they can achieve political outcomes without going through the traditional lawmaking function required by the U.S. Constitution and the various state constitutions. By bringing lawsuits, they can effectively tax and regulate tobacco companies, electric utilities, gun manufacturers, etc. without having to worry about the legislative or regulatory process. In doing so Spitzer, Dann, Scruggs and the rest of the “regulation through litigation” crowd painted their crusade as necessary in order to protect the little guy and make the legal system achieve its true potential.

In the end, Spitzer, Dann, and Scruggs were done in by their disregard for the legal system and the laws they hid behind. Lust, greed, and ambition were their true motivators and they have now been exposed. Unfortunately, we are stuck with their legacy: state AGs and their trial lawyer buddies abusing the legal system to achieve political ends. Hopefully, more courts will see through such abuse as the Rhode Island Supreme Court did this week in the context of the bogus lead paint litigation.

.
A little bit of headline reform is needed here, “Ohio lawmakers appeal DHL’s UPS decision.”

Er, no. The lawmakers appealed to DHL to change its decision. Nobody sued anybody, at least not yet.

A better headline would be, “Say, guys, how about a little cheese with your whine?”

And speaking of untoward results, how about agreeing to chaperone a high school trip, only to be sued because an 18-year-old snuck in some booze and ended up tumbling off a balcony to her death?

Here’s the thing; take doctors as an example. You sue a doctor if you die, the result will not be better medical care. It will be no medical care. If your chance of dying at a given moment is, say, 75 percent to 100 percent, and a doctor can change that percentage to, say, 60 percent, you’ll take that deal. But if your luck doesn’t hold, your estate does not win the lottery. Doctors aren’t there to ensure no one ever dies and insure huge payouts if someone does. Doctors are there to change the odds.

18-year-olds are marginally more likely than adults to engage in stupid behavior, and significantly less likely to know how to deal with the adverse consequences. That has nothing to do with chaperones. Except in the most egregious circumstances, suing chaperones won’t result in fewer kids’ deaths. It’ll just mean the kids will die closer to home