BuckeyeBlog

A few weeks ago, I wrote a Buckeye Institute Viewpoint on Ohio Attorney General Richard Cordray’s decision to dismiss the state’s public nuisance lawsuit against paint manufacturers. Former Ohio AG Marc Dann brought the lawsuit in 2007 seeking to force the paint manufacturers to pay for the costs of cleaning up thousands of buildings that had been neglected for decades. The state claimed that the paint manufacturers were responsible for creating a public nuisance by manufacturing and selling lead-based paint more than 40 years ago.

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.”

The Federalist Society just published a special issue of the State Court Docket Watch dedicated to lead paint litigation.  Included in the publication is new article I wrote discussing the Ohio lead paint litigation and placing it in the context of a disturbing trend of government-sponsored public nuisance litigation against manufacturers. It is unclear whether Cordray’s decision to dismiss the lead paint lawsuit is a clean break with this trend or just a reflection of the reality that the state’s case was unlikely to succeed. Regardless, Cordray’s decision to dismiss Ohio’s lead paint case is a hopeful sign for those who are concerned about overzealous use of government-sponsored litigation.

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.