Pursuing Public Nuisance Claims Can Create Costly Headaches for Government Plaintiffs

Here’s hoping that the government lawyers responsible for pursuing the pending public nuisance litigation in Santa Clara v. ARCO et al take a close look at the recent cost award against the state of Rhode Island described in this article. Just for starters, the Rhode Island court has ordered that the state reimburse some $242,000 in special litigation costs to three of the lead paint/pigment defendants in the ill-conceived public nuisance action brought there. (Information about the Rhode Island Supreme Court’s prior decision, finding the government plaintiff’s nuisance theory was unfounded, can be found here.) This award, representing just one aspect of the defense costs, may be the tip of the iceberg since, as recounted in the article linked above, the defense will be asserting its claim for ordinary costs, and the state itself claims to have spent $1.9 million in costs.

One has to wonder whether the Rhode Island litigation would have gotten so far out of hand if the case had not been farmed out to private counsel working on a contingency fee basis. (The January 22 cost order says the case generated “what is considered to have been the longest civil trial in Rhode Island history.”) Undoubtedly tickled at the prospect of recovering a percentage of any monetary relief awarded, counsel proposed that a $2.9 billion remedy be imposed based on their unprecedented and ultimately unsuccessful nuisance claim. In the end, these counsel left the state on the hook not only for its own costs, but also for hundreds of thousands (millions?) of dollars in defense costs, not to mention the costs indirectly incurred through the waste of judicial resources over the long haul of the litigation. The tale brings to mind the adage, “pigs get fat, but hogs get butchered.” Maybe the government plaintiffs in the California litigation will wake up and smell the bacon, and dismiss their claims before digging themselves into the same hole that Rhode Island finds itself in.

[Disclosure: the author of this post is one of the defense counsel in the California Santa Clara litigation, as well as being a concerned California taxpayer.]