ON-Lion Letter
The litigation industry's hopes of extracting money from paint manufacturers began to look promising last year when the trial bar won a major victory in Rhode Island, but recent court decisions in three other states have evinced a more-traditional understanding of the issues raised in the Rhode Island case, a new update from the Center for Legal Policy (CLP) at the Manhattan Institute for Policy Research in New York City notes.

In February 2006, a Rhode Island superior court found three paint makers liable for the costs of removing lead paint from 240,000 public and private buildings under a novel "public-nuisance" legal theory, as recounted in the July Trial Lawyers, Inc. Update No. 3, "Judicial Lead-ership:  State Courts Are Rebuffing the Trial Lawyers' Attack on Paint Manufacturers."  The estimated total cost of Rhode Island's court-ordered cleanup:  $3 billion.

This successful legal assault, the paper notes, combined two of the oldest and most-successful strategies in the lawyers' playbook -- going after long-ago manufacturers of lawful products and co-opting allied state attorneys general to back the private lawyers' claims.

In June, however, courts in New Jersey, Ohio, and Missouri have turned back similar assaults.  The New Jersey Supreme Court rejected the public-nuisance theory's application in the lead-paint context as inconsistent with "the well-recognized parameters of the common-law tort of public nuisance."  The Missouri Supreme Court rejected a lead-paint public-nuisance suit on causation grounds, refusing to attach liability to defendant companies based on "market share" when no evidence of actual sales causing damage exists.  And the Ohio Supreme Court let stand a lower-court decision dismissing a lead-paint public-nuisance claim filed by the state and five of its cities.

"[L]ast month's rulings were a victory for the American economy and the American civil justice system," CLP's update concludes.  "Let's hope that reformers continue to push to clarify public nuisance law, get sensible judges on the bench, and restrict attorneys general from contracting out state business to their contingency fee buddies in the plaintiffs' bar."

CLP is directed by James Copland.  The Lynde and Harry Bradley Foundation support its PointofLaw.com website, which is also sponsored by the Liability Project at the American Enterprise Institute for Policy Research in Washington, D.C.

CLP's Trial Lawyers, Inc. series of publications that examine the size, scope, and inner workings of America's lawsuit industry.
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