Legal foundation discusses public nuisance suits

John O'Brien Aug. 2, 2007, 9:58am

Victor Schwartz

WASHINGTON, D.C. - The past, present and future of public nuisance claims were all part of a discussion broadcasted Thursday by the Washington Legal Foundation.

Attorneys Victor Schwartz and Phil Goldberg of Shook, Hardy and Bacon spoke about the controversial subject, which is at the center of the lead paint litigation issue.

"The wealthy personal injury lawyer and state attorney general have been in the dance together in most of these public nuisance claims," said Schwartz, who also serves as counsel for the American Tort Reform Association and co-authors the most widely used torts casebook in the country.

"The personal injury lawyer -- and I was one, and there's nothing wrong with it -- but their interest is making the most profit possible and making the most money for its client and expanding tort law as far as it will go, to the ends of the Earth. I did it myself.

"That's not necessarily in the interest of the state and what the state attorney general should be doing."

Yesterday's Ohio Supreme Court decision ruled the veto of a tort reform bill invalid, apparently ending Attorney General Marc Dann's plan for a nuisance claim against companies that manufactured lead-based paint before it was outlawed in 1978.

The case is the latest in a growing line of successes for the paint industry, which has already picked up wins in New Jersey, Missouri and Wisconsin.

Schwartz and Goldberg say plaintiffs firms want to shape nuisance laws to allow for recovery like what has been granted in Rhode Island, the first state to file a nuisance claim against a paint company. So far, three companies have been found liable for the presence of the paint, and abatement estimates are in the billions. The plaintiffs have appealed the ruling to the state's Supreme Court.

Motley Rice is credited with the idea of using nuisance claims as a way of working around the susceptibility of a products liability case. It introduced the idea to Rhode Island, which hired it on a contingency fee basis.

"Plaintiffs lawyers, they don't think boxes," Schwartz said. "They're not putting their whole life in whether they can change nuisance law. Maybe it will work through a consumer protection act or maybe it will work through medical monitoring. They have a lot of clubs they can use.

"If you shut down the ability for them to work with state officials and obtain a contingency fee for what is the state's responsibility, it would strike a major blow to those attempting to expand tort boundaries."

Goldberg offered his opinion that the suits were never intended to go trial, saying plaintiffs firms thought businesses would bow to them once given governmental authority.

Instead, the paint companies fought back.

Soon, Schwartz revealed, Kentucky, with the help of outside counsel working on a contingency fee basis, will introduce a nuisance case against those who sold respirators in the cases of coal miners stricken with black lung.

The case will seek reimbursement to the state's Medicaid fund, not the miners themselves. Schwartz said the lead paint cases may have been more successful if they had tried that approach.

"Part of the problem is who is driving the bus," Schwartz said. "It is not the Attorney General of Rhode Island (Patrick Lynch). He has handed it over to a major contingency fee firm.

"If the Attorney General had to hire people in an open bidding process and not just pick personal friends who might help political matters, we've found they generally don't do it, and a nuisance claim might not be brought."

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