June 18, 2007
Lead Paint Defendants Win Two Appeals
It was a good week for the paint industry. Last week, both the New Jersey Supreme Court and the Missouri Supreme Court handed down decisions rejecting public nuisance claims against lead paint manufacturers.
The New Jersey Supreme Court decision provides a lesson in differing perspectives on public policy torts. The majority emphasized the separation of powers concern (that the state legislature had passed a statute concerning lead paint, and it would overstep the judiciary's bounds to permit a liability theory that the legislature had not embraced) and the slippery slope argument (that to permit plaintiffs' public nuisance claim would be to create an unbounded tort). The dissent (Chief Justice James Zazzali, in his final week on the bench, joined by Justice Virginia Long) emphasized the seriousness of the lead paint problem and the need for common law doctrines to evolve to achieve justice in a changing world.
After the 1998 tobacco settlement with the state attorneys general, some people predicted an era of massive litigation by states and municipalities against harm-causing industries. We've seen some such litigation -- notably over handguns and lead paint -- but for the most part it hasn't had much traction. Rhode Island's lead paint suit resulted in a plaintiff victory at the trial level, although the appeal to the Rhode Island Supreme Court pending. Last week's Missouri Supreme Court decision, with the New Jersey decision several days later, leaves the Rhode Island case looking more like an anomaly than a front-runner.