State Court Docket Watch - The Federalist Society for Law and Public Policy Studies
The Federalist Society has published a special issue of the State Court Docket Watch, a semi annual examination of state court litigation. The focus of the most recent issue is Lead Paint Litigation; primarily the Public Nuisance lawsuits brought in Rhode Island and Ohio, as well as the pending lead paint litigation in California.
The central issue in the pending California Supreme Court case is whether or not California public entities are permitted to hire private counsel on a contingency fee basis to prosecute a Public Nuisance action against lead paint manufacturers without violating prosecutorial neutrality. In an earlier public nuisance/contingency fee case (People ex. rel Clancy v. Super. Court of Riverside County 705 P.2d 347) the Supreme Court of California noted the importance of prosecutorial neutrality:
Thus a prosecutor's duty of neutrality is born of two fundamental aspects of his employment. First he is a representative of the sovereign; he must act with the impartiality required of those who govern. Second, he has the vast power of the government available to him; he must refrain from abusing that power by failing to act evenhandedly.
Another article in the issue addresses the Rhode Island Supreme Court's reversal of a jury decision finding lead paint manufacturers liable for the costly abatement of potential lead paint hazards. The Court found that the tort of Public Nuisance was not intended to supplant the Product Liability tort stating "...the law of public nuisance has never before been applied to products..." Furthermore the Court found that the defendants had not interfered with a public right, nor were they in control of the lead paint at the time of the alleged harm, both elements being necessary to prove public nuisance. With the case not matching any of the four elements of public nuisance, the Court found that the Defense's motion for dismissal should have been granted at the outset.
The third article in the issue addresses the Ohio Lead Paint litigation which never even got off the ground. Recognizing the folly of attempting to swap the Public Nuisance tort for the Product Liability tort in the wake of the Rhode Island Supreme Court decision, the Ohio cities that had pressed the Public Nuisance suits voluntarily dismissed their cases.