Commentators and Some AG’s agree: Nuisance Litigation is Not the Cure for Public Health Problems

Governing Magazine’s executive editor Alan Ehrenhalt has a thoughtful piece – “Torts for Tots” - on the problem of “regulation through litigation” (an issue previously blogged on this site).  Against the backdrop of public nuisance litigation against lead paint and pigment manufacturers, he raises serious questions about the role of courts in undertaking broad public policy determinations that more properly rest with legislatures. For one thing, “[s]ending a regulatory issue to court means that, for all practical purposes, only the judge, jury and litigants get any say in the matter. Not only is the public shut out, but there is little opportunity for the two sides to negotiate a deal without the threat of crippling court-ordered penalties hanging over the proceedings.”  Ehrenhalt further notes the problem of nonuniform standards that can result from state-by-state litigation of the type that’s been cropping up in the lead paint nuisance cases around the country:  “Santa Clara County, in California, has filed a nuisance case against paint companies there, and courts in that state are vehemently independent and pro-consumer. It's still possible that we could end up with one standard in California, a different standard in Rhode Island, and a renewed interest among trial lawyers in testing the courts of some of the other 48 states.” 

Interestingly, one state’s Attorney General just last week seemed to have similar concerns.  A press release about Ohio’s decision to dismiss lead paint nuisance claims previously initiated by that State reported:

After careful consideration, Ohio Attorney General Richard Cordray today voluntarily dismissed the lead paint lawsuit filed by former Attorney General Marc Dann in April 2007. This lawsuit was pending in the Franklin County Court of Common Pleas against ten paint manufacturers and was focused on abatement of lead paint throughout Ohio.

“I understand and strongly agree that exposure to lead paint is a very real problem,” said Attorney General Cordray. “But I also know that not every problem can be solved by a lawsuit.” After assessing the law, facts, and adverse legal rulings in these types of cases nationally, the Attorney General concluded that those at risk - and Ohio’s economy - would be best served by focusing on how public/private partnerships can be enhanced to address any existing problems with lead paint exposure.