Mark Carlton's Blog

The American Tort Reform Association (ATRA) has just published its annual list of “Judicial Hellholes” and, no surprise, California is on the “Watch” list. This is no surprise because the California judiciary has abdicated its gatekeeper responsibility.

There are likely any number of reasons for this “recognition” of the California judicial system, but let’s look at one major reason-- public nuisance litigation.

Public nuisance, as misapplied by the plaintiffs’ bar, would neuter the long-standing law of product liability. Plaintiffs, unable to identify which manufacturer’s product caused the alleged harm, try to cast a wide net of public nuisance to snare any company that manufactured, distributed, promoted or sold the product, regardless of how many decades ago and regardless of whether it was defective, claiming these entities substantially contributed to creating and maintaining a public nuisance. In at least one instance, a California Court of Appeals agreed with this mottled thinking and has allowed a public nuisance claim to proceed against companies some of which last manufactured lead pigment 50+ years ago. Surprisingly, the California Supreme Court declined to hear the appeal.  Read More »