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Rhode Island Win Is Just a Battle in the Public Nuisance War To Come

By Donald G. Gifford
January 28, 2009

The recent decision of the Supreme Court of Rhode Island in State v. Lead Indus. Ass'n, 898 A.2d. 1234, 1235 (R.I. 2006), was widely perceived by the American business community as a veritable life saver. The court reversed the trial court's judgment that lead pigment producers should be held liable for the potentially billions of dollars required to remove lead-based paint from hundreds of thousands of residences throughout the state. More broadly, the decision seemed to defuse the ominous potential for a new generation of cases based on “public nuisance” arguments exponentially increasing the liability of businesses in many industries.

However, while the court's decision was an important one, it also may give corporate counsel a false sense of security. It is unlikely that law of public nuisance will return anytime soon to the lowly status it held less than 50 years ago when a Michigan appellate court referred to it as “the great grab bag, the dust bin, of the law.” The state tobacco settlements, resting on public nuisance and similar claims and totaling more than $300 billion, still shine brightly for mass products plaintiffs' attorneys. The Rhode Island litigation provided them with important experience and taught them how to try such claims to jury verdicts. So the question facing corporate counsel is what public nuisance threats remain after the Rhode Island decision.

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