Another state rejects public nuisance in the product liability context – although only after the defendants were forced through “the longest trial in [state] history.”

What did the Rhode Island Supreme Court hold in State of Rhode Island v. Lead Industries Association, Inc., 951 A.2d 428 (R.I. 2008). Here’s a synopsis:

(1) The court finally used the Cardozo “knight errant” quote that Bexis has ended all of his public nuisance amicus briefs with for the past decade or so. There’s other very nice language along the “judicial restraint” line that we’d love to see other courts adopt when plaintiffs bring forth their next bizarre and novel theory for expanding liability to everybody in the world.

(2) The bottom line:

We agree with defendants that the public nuisance claim should have been dismissed at the outset because the state has not and cannot allege that defendants’ conduct interfered with a public right or that defendants were in control of lead pigment at the time it caused harm to children in Rhode Island.

Slip op. at 17.

We are cognizant of the fact that the common law is a knowable judicial corpus and, as such, serves the important social value of stability; although the common law does evolve, that evolution takes place gradually and incrementally and usually in a direction that can be predicted.

Slip op. at 21.

(3) Public nuisance liability requires that the defendant be in control of the condition sought to be abated. Slip op. at 22, 27-30.

(4) The manufacture of products isn’t a public nuisance:

The manufacture and distribution of products rarely, if ever, causes a violation of a public right as that term has been understood in the law of public nuisance. Products generally are purchased and used by individual consumers, and any harm they cause — even if the use of the product is widespread and the manufacturer’s or distributor’s conduct is unreasonable — is not an actionable violation of a public right.

Slip op. at 26 (citation and quotation marks omitted). See also slip op. at 40-42 (“public nuisance and products liability are two distinct causes of action, each with rational boundaries that are not intended to overlap”).

(5) The conduct of the defendant must be proven to have caused the nuisance, and causation can’t be remote. Slip op. at 30-32. Note: This section does not discuss any market share liability cases (such as Gorman).

(6) In most cases, public nuisance liability will involve abatement of conditions upon the defendant’s land. Slip op. at 32-34.

(7) The lead paint allegations fail to establish a “public right”:

[T]he public’s right to be free from the hazards of unabated lead … falls far short of alleging an interference with a public right as that term traditionally has been understood in the law of public nuisance. The state’s allegation that defendants have interfered with the “health, safety, peace, comfort or convenience of the residents of the [s]tate” standing alone does not constitute an allegation of interference with a public right. The term public right is reserved more appropriately for those indivisible resources shared by the public at large, such as air, water, or public rights of way. Expanding the definition of public right based on the allegations in the complaint would be antithetical to the common law and would lead to a widespread expansion of public nuisance law that never was intended…. In declining to adopt such a widespread expansion of the law, we are mindful of the words of Edmund Burke that “bad laws are the worst sort of tyranny.”

Slip op. at 34-35. Strong stuff here. More nails in the coffin of a bad legal idea who’s time has passed.

(8) The proper legal remedy is to sue the landlords, not manufacturers of products made decades earlier. Slip op. at 39-40.

(9) The attorney general’s statements about the defendants did not constitute contempt of court. Slip op. at 53-60.

(10) It’s OK for governmental agencies to sign contingent fee contracts with outside lawyers, as long as the government maintains “final, sole and unreviewable” control of critical litigation decisions:

[T]he Attorney General is not precluded from engaging private counsel pursuant to a contingent fee agreement in order to assist in certain civil litigation, so long as the Office of Attorney General retains absolute and total control over all critical decision-making in any case in which such agreements have been entered into.

Slip op. at 72-73 (emphasis original). There’s always a fly in the ointment, it seems.

(11) A contingent fee payment to a government-engaged private lawyer is not void as an improper appropriation of funds. Slip op. at 75-80. Rather, the attorney holds an “equitable lien” subject to judicial oversight. Id.

Because Herrmann’s firm has been actively involved in the RI Lead case, he has elected to recuse himself from this post. Thus the blame for the excessive turnaround time and the sundry omissions from this post go to Bexis alone.