A couple of quick hits today, on once “novel” causes of action whose time – at least in the novel legal spaces to which plaintiffs attempted to export them – appears to have passed.

The first of these is the shopworn effort, popular back in the late 1990s but more or less petered out by now, to use the ill-defined concept of public nuisance as a club to attack the products of an entire industry, and not incidentally, to try an end run around product specific causation.  We’ve blogged on it before, criticizing public nuisance claims against products on various grounds.

Us?  The Drug And Device Law Blog?  Who listens to us?

Not too many people, unfortunately.

But a lot of people – most importantly, judges – listen to the American Law Institute.  Bexis has joined the Members’ Consultative Group for the ALI’s Third Restatement of Torts: Liability for Economic Harm, and that group met recently.  Preliminary Draft #2, circulated last month, has this to say about attempts to use “public nuisance” to encroach upon the law of product liability:

g.         Products.

Tort suits seeking to recover for public nuisance have occasionally been brought against the makers of products that have caused harm, such as tobacco, firearms, and lead paint.  These cases vary in the theory of damages on which they seek recovery, but often involve claims for economic losses the plaintiffs have suffered on account of the defendant’s activities: the costs of removing lead paint, for example, or of providing health care to those injured by smoking cigarettes.  Liability on such theories has been rejected by most courts, and is excluded by this Section, because the common law of public nuisance is an inapt vehicle for addressing the conduct at issue. . . . If those [existing] bodies of law provide do not supply adequate remedies or deterrence, the best response is to address the problems at issue through legislation that can account for all the affected interests.

As noted in Comment g [sic, we think this should be “b”], problems caused by dangerous products might have seemed to be matters for the law of public nuisance only because the term “public nuisance” has sometimes been defined in broad language that appears to encompass anything injurious to public health.  The traditional office of the tort, however, has been narrower than those formulations suggest, and contemporary case law has made clear that its reach remains more modest.  The rules of this Section reflect that modesty.Continue Reading Bad Ideas Whose Time Has Passed