Great decision from the Paraquat MDL recently, rejecting public nuisance claims in the product liability context.  In re Paraquat Products Liability Litigation, 2022 WL 451898 (S.D. Ill. Feb. 14, 2022), involved what, in the herbicide context, is the equivalent of a prescription drug.  That product “is not available for purchase by the public or for residential use and may only be applied by certified applicators.”  Id. at *1.  Not only is it a legal product, but Paraquat “is one of the most widely used herbicides in the United States.”  Id.

So plaintiffs claimed it was a “public nuisance” under their distorted view of state law.  The judicial response in Paraquat:  “No way, Jose.”  Public nuisance is not validly employed against legal products, but rather is a land use tort.  “Examples of public nuisances include toxic runoff . . ., discharge of noxious gas . . ., and changes to a . . . drainage system that causes flooding.”  Id. at *9.  Further, courts are “wary . . . of extending public nuisance law to cover claims regarding non-defective products that are legally sold absent some additional wrongdoing.”  Id. (citations omitted).  The Paraquat plaintiffs did not disagree – but claimed they met this standard.

What was plaintiffs’ “additional wrongdoing” in Paraquat?

The same kind of thing seen in routine product liability cases:  that “[d]efendants advertised and promoted a dangerous product, despite knowing of its disease-causing properties.”  Id.  In short, plaintiffs’ lax reading of “additional wrongdoing” would have abolished any meaningful distinction between product liability and public nuisance – which of course was their intent all along.

Fail.

[T]he Court finds Plaintiffs’ public nuisance claims to be more like a products liability cause of action than an action to truly address a public nuisance.  Plaintiffs complain that [one defendant] promoted the benefits of Paraquat on its website while failing to warn of its risks, which is repetitive of Plaintiffs’ failure to warn claim.  They seek damages for their alleged injuries rather than abatement of any true public nuisance.  Moreover, Plaintiffs provide no basis for their public nuisance claim against [another defendant], which stopped distributing Paraquat in 1986.  Accordingly, the Court agrees with Defendants that Plaintiffs’ public nuisance claims must fail.

Id. at *10 (emphasis added).

Basically, the product-related public nuisance claims asserted in the Paraquat MDL failed to state a claim because they lacked the two main elements of public nuisance.  First, allegedly defective products do not interfere with “public rights,” which are “collective in nature.”  Id.  The plaintiffs claiming injury from Paraquat exposure did not allege loss of a “public right” – rather, they alleged personal injury.  Plaintiffs blathered on about “soil injury,” but they weren’t seeking damages for violation of some broad, vague (and impossible) “public right to be free from pollutants.”  Id.  No.  These plaintiffs claimed “injuries to individuals allegedly caused by direct exposure to Paraquat.”  Id.  Thus, they failed to allege interference with a public right.

Second is the element of “control.”  The alleged exposures and injuries occurred after Paraquat had left these defendants’ hands.  That was also fatal to the public nuisance because “in order to seek abatement of a public nuisance, a defendant must have control over the instrumentality causing the nuisance condition.”  Id. at *11 (citation omitted).  Plaintiffs once again tried to dilute that element to the point of nonexistence by arguing that the mere fact of the defendants “continuing their daily business operations, knowing of the potential harm to Plaintiffs and the public, without taking any steps” – presumably, once again, to warn – satisfied the element of “control.”  They lost.

This Court is not convinced that a manufacturer’s choice to carry out its daily business activities constitutes control over a product after it has been sold. . . .  [T]here is no common law tort duty to monitor how a consumer uses a product after it is sold. . . .  [A] manufacturer has no control over its product once it is in the hands of distributors and wholesalers, no control over how consumers use the product regardless of any warning or instructions, and no control over the laws and regulations governing the distribution of its products.  To hold otherwise, would mean a manufacturer could be held perpetually liable for its products under a nuisance theory.

Id. (citations and quotations of State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719 (Okla. 2021), omitted).  Paraquat “agree[d]” with “the “clear national trend to limit public nuisance to land or property use, and to reject the application of public nuisance to products.”  Id. (citation omitted).  See here, here, and here.

Paraquat is a legally sold product, and Defendants exerted no control over Paraquat at the time of its application.  To allow Plaintiffs to bring a public nuisance claim simply because Defendants carried on their normal day-to-day business operations while Paraquat was allegedly causing Plaintiffs’ injuries would expand the tort beyond its intended purpose.

Id. at *11.  Paraquat thus recognized the fallacy of plaintiffs’ “daily business” argument.  As with their argument to dumb down the collective right element, it “would allow consumers to convert almost every products liability action into a public nuisance claim.”  Id. (citation and quotation marks omitted).

Every holding in Paraquat is equally applicable to public nuisance claims against prescription drugs.

For the sake of completeness, we also point out that this Paraquat decision deals with issues other than public nuisance.  First, it holds that plaintiffs succeeded in pleading around, for Rule 12(b)(6) purposes anyway, the statutes of repose of six states (Connecticut, Georgia, Illinois, Indiana, Iowa, North Carolina).  Id. at *3-9.  Second – and more helpful to our side – Paraquat barred warranty claims under the product liability statutes of several states.  On this point, plaintiffs argued with a breath-taking lack of consistency that their claims accrued before these statutes were enacted.  Paraquat saw through that ruse:

The Court disagrees.  Either Plaintiffs’ injuries accrued when they were first exposed − and therefore their claims are not precluded by a later-enacted PLA but barred by a statute of limitations − or their injuries accrued when they discovered the injury − saving their claims from the statute of limitations but barring them under the relevant PLA.  Plaintiffs cannot have it both ways.

Id. at *12.  Third, plaintiffs got around various warranty and consumer protection arguments by kicking the can down the road, because they required individualized determinations (another consequence of the de facto abolition of Rule 8 in MDLs).  Id. at *14.

But we’ll take the bad with the good for now – and the good part of Paraquat – dismissal of all public nuisance claims – is very, very good.