PUBLIC NUISANCE NONSENSE
Lead Paint. This report has consistently kept an eye on state attorneys general and, more recently, county and city prosecutors who, often with help from private-sector plaintiffs’ lawyers, pursue deep-pocket corporate defendants with lawsuits that seek to substitute public nuisance law, with its lower standard of proof, for products liability law and its more exacting standard.
Though public nuisance lawsuits against companies that stopped making lead paint decades ago had failed in seven other jurisdictions, the scheme to force those defendants to pay for the abatement of peeling and chipping paint won a key 2013 victory with help from Santa Clara Superior Court Judge James Kleinberg.
During the bench trial, defense counsel adduced plenty of evidence that showed the paint companies had stopped selling lead paint once science demonstrated its threats to health and child development, and before the federal government ordered a halt to such sales in 1978. They also showed that California suffers no appreciable lead exposure problems, at least not relative to the national average. But that made no difference to the intransigent Judge Kleinberg, and in January 2014, after entertaining post-verdict motions, he ordered three defendant companies to pay $1.15 billion, to be shared among Alameda, Los Angeles, Monterey, San Mateo, Santa Clara, Solano and Ventura counties, and the cities of Oakland, San Diego and San Francisco.
The defendants have appealed and now await scheduling of oral arguments. Meanwhile, in a November 2015 Daily News op-ed, “Why Lead Paint Lawsuits Are a Dud for California Cities, Counties,” former Los Angeles City Attorney Carmen Trutanich warned that the verdict, if upheld, “labels ‘every’ painted residential building, constructed prior to 1981, as a ‘public nuisance.’”
This label will remain with the structure, Trutanich instructs, until it is inspected, lead paint is removed or abated as necessary, and the structure passes a re-inspection. “In essence, the findings transfer the stigma of lead paint to every single private property owner,” whether their paint is in disrepair and poses a hazard or not, “in exchange for money to the cities, counties, and of course, the lawyers.”
Trutanich asks: Who will actually end up paying for all these inspections, abatements and re-inspections? How will owners of structures labeled a “public nuisance” react to “drastic declines” in their property values? And how will governments cope when corresponding property tax revenues fall off?
“Perhaps most importantly, a lawsuit like this can create a dangerous negative precedent for our state” when it tries “to attract new manufacturers and other employers,” and it can “create problems in retaining established businesses,” Trutanich concluded.
‘Son of Lead Paint’ or the ‘Attack of the Nuisance Opioids.’ The seeming success of the lead-paint-as-publicnuisance case before Judge Kleinberg inspired comparable litigation in which prosecutors from Santa Clara and Orange counties teamed up with a host of private-sector contingency-fee lawyers in May 2014 to sue five drug makers, alleging they have caused a deadly epidemic of addiction to potent painkillers with a “campaign of deception” designed to promote sales and boost profits. And again, rather than pursue the litigation under products liability law, county prosecutors and their hired guns relied on California’s sprawling and always easily exploited false advertising and unfair competition law, as well as the more adaptable law of public nuisance.
Leaving aside the pesky facts that the painkillers in question have been approved by the Food and Drug Administration and require a prescription from a licensed and not readily deceived physician to obtain them, plaintiffs explained that making sure people understand the risks and benefits of drugs like OxyContin and Percocet before taking them is the lawsuit’s “primary goal.” That must mean that extracting hundreds of millions of dollars from drug makers to be poured into county coffers and the personal bank accounts of multimillionaire personal injury lawyers who’ll likely support the prosecutors’ future political campaigns is only a secondary goal.
In any case, in late August 2015 Orange County Superior Court Judge Robert J. Moss struck a rare blow for common sense in California civil courts when he dismissed the counties’ case. According to the Los Angeles Times, the judge was clearly swayed by a defense attorney’s argument “that having a single point of oversight served the public interest because it was efficient, relied upon regulators’ specialized expertise and avoided confusion.”
In announcing his decision to dismiss, Judge Moss said he would put the case on hold indefinitely to allow the FDA to complete a pending inquiry into the safety and efficacy of painkillers. But he also firmly rebuked prosecutors, saying:
Not one case cited by plaintiff involved, and indicated the propriety of, a court immersing itself in the convoluted, exacting, expertise-driven, issue-expanded, nuanced action which is involved here. The patients, potential patients, and the medical community deserve more. This action could lead to inconsistencies with the FDA’s findings, inconsistencies among the States, a lack of uniformity, and a potential chilling effect on the prescription of these drugs for those who need them most. The proposed ongoing role of the court in this litigation, and in the monitoring of any decision it makes, is a monumental endeavor. The court does not shrink from its responsibilities to handle complex, convoluted litigation; it handles such matters every day of the week. It does, however, take pause at involving itself in an area which is best left to agencies such as the FDA who are designed to address such issues.
This case, and its dismissal, show why local governments should be loath to get wrapped up with private-sector plaintiffs’ lawyers seeking to maximize their profits instead of justice in the public interest.