The New Jersey Supreme Court tossed out a lawsuit today broughtby 26 New Jersey towns and counties against lead paintmanufacturers that sought to recover the cost of removing thehazardous product.

The decision found that the action could not be brought underpublic nuisance law and was actually a product liability case.

The high court's decision is consistent with a similar readingof the law by the Missouri Supreme Court earlier in the week. Thatcourt ruled Tuesday against the City of St. Louis over who shouldpay to clean up lead paint in homes, upholding a lower court'sfinding that the city could not proceed with a lawsuit againstmakers of lead paint.

The New Jersey ruling has significance beyond that state,according to Phil Goldberg with the Washington, D.C. office ofShook, Hardy & Bacon. The firm defends insurers and otherdefendants in class action lawsuits.

"Coupled with the ruling in Missouri by the state Supreme Courtthere, it marks a new chapter in the use of public nuisancetheories that returns to normalcy the use of public nuisance legaltheory to its original intent," he said.

The New Jersey and Missouri decisions come as a suit is pendingin Ohio, which was filed by that state's attorney general in Aprilagainst 10 paint manufacturers and chemical companies, includingSherwin-Williams and DuPont.

Also, a Milwaukee jury is set to hear arguments June 18 in apublic nuisance case in Wisconsin against NL Industries over thecosts of removing or sealing up lead paint on homes and publicbuildings. City officials there are seeking $85 million indamages.

At the same time, the Rhode Island Supreme Court is scheduled toreview a lower court decision shortly concerning lead paintremoval.

That case brought by the State of Rhode Island against themakers of lead-based paint resulted in a jury finding last yearthat three companies must clean more than 300,000 homes of leadcontamination and may potentially be forced to pay out billions ofdollars in damages.

"If the Missouri and New Jersey rulings are applied in RhodeIsland," Mr. Goldberg said, "the Rhode Island lower court decisionwould be unsustainable."

The 4-2 ruling by the New Jersey Supreme Court was a victory forthe manufacturers, which included American Cyanamid Co. (now partof Wyeth), Sherwin-Williams Co. and DuPont.

The court determined that the towns and counties failed toidentify a special injury that could be compensated. It said theclaim was essentially a products liability issue and falls underthe state Product Liability Act, which excludes coverage forexposure to toxic material.

The Supreme Court decision reversed a New Jersey Superior CourtAppellate Division panel's ruling last Aug. 17 that said a trialcourt was wrong in dismissing the suit. The Appellate panel'sdecision held that the consolidated public nuisance lawsuit broughtby 26 municipalities against the former makers of lead paint in thestate could proceed.

The paint and pigment makers then asked the state Supreme Courtto review the case. The defendants argued that the AppellateDivision "impermissibly eviscerated" the distinction betweenproducts liability claims and public nuisance claims by allowing apublic nuisance claim when the only allegations are that thedefendants made and lawfully sold a product and failed to advise ofits risks.

The majority Supreme Court decision held that the plaintiffs didnot show that the case fell outside the New Jersey ProductsLiability Act by virtue of the environmental tort exception.

Moreover, the majority said, "although there may be room inother circumstances for an expanded definition of the tort ofpublic nuisance, we find no basis in this record to conclude thatthese plaintiffs have stated such a claim."

The minority, Chief Justice James R. Zazzali and JusticeVirginia Long, held that the Supreme Court has a duty to reconcileoutdated formulations of the common law with the complexities ofcontemporary society and said the public nuisance doctrine is "anappropriate and efficient means for vindicating the public's rightto be free from the harmful effects of lead paint."