In the latest defeat for a government attempting to use public nuisance law against a lead paint manufacturer, a Wisconsin appeals court ruled last week that the statute does not apply in a case brought by Milwaukee.
Still pending after the decision by the Wisconsin District 1 Court of Appeals are cases pending in Ohio and California.
Milwaukee's bid to force NL Industries Inc., a former lead paint manufacturer, to pay for the cleanup of properties in the city was rejected Tuesday by the intermediate appeals court panel.
It follows a series of court setbacks for municipalities' efforts to force lead paint manufacturers to pay for cleanups through enforcement of public nuisance laws.
The decision by Wisconsin District 1 Court of Appeals came on a panel's 2-1 ruling that the evidence was sufficient to uphold a Milwaukee County jury verdict last year in favor of NL Industries Inc. NL, the jury found, does not have to pay the city costs of cleaning up the inner-city homes.
The city had argued that the widespread presence of lead paint in Milwaukee homes was a public nuisance. But the jury found NL Industries did not "intentionally and unreasonably engage in conduct" that caused the nuisance and was not negligent.
In its appeal, the city contended that the judge made numerous mistakes in his instructions to the jury, as well as errors in admission of evidence and court procedures. The city asked the appeals court to overturn the jury's verdict, arguing that the company knew for decades that childhood lead paint poisoning was a serious public health problem but continued to sell and promote the product.
The appeals court rejected the city's contention that the company knowingly sold a dangerous product, saying dangers associated with lead paint dust were largely unknown at the time.
"We conclude that there is credible evidence in the record to support the jury's conclusion that NL Industries did not know that the public nuisance found by the jury was resulting or was substantially certain to result from its conduct," Judge Patricia Curley wrote in a decision joined by Judge Ralph Adam Fine.
The city sought $52.6 million for the cleanup program, which spanned 1992 to 2006 and involved replacing old windows in 11,000 contaminated properties.
In July, City of Columbus, Ohio, voluntarily dismissed with prejudice its public nuisance lawsuit against former manufacturers of lead pigment. And earlier in the month, the Rhode Island Supreme Court unanimously dismissed a lawsuit demanding that manufacturers of lead paint pigment pay the billions of dollars needed to abate the risk of lead poisoning faced by children living in the older structures where lead paint remains a menace.
Although these cases have been filed throughout the country, dismissal of the Rhode Island suit leaves only two public nuisance suits still pending–one filed by the State of Ohio, and another by Santa Clara and other California municipalities.
Mark Behrens, an attorney with Shook, Hardy & Bacon L.L.P., Washington, D.C., said the Wisconsin ruling "closes one more door to the improper use of public nuisance theory against product manufacturers."
He noted that, in addition to Rhode Island, state supreme courts in New Jersey and Missouri have ruled that their states' public nuisance laws cannot be used as a substitute for products liability laws.
The Wisconsin Court of Appeals, he said, "finally drew its own line in the sand, refusing to further water down the state's public nuisance law. Had the court gone the other way, any manufacturer of a product, from household cleaners and kitchen cutlery to prescription drugs, would have been liable for harms caused by their products under the unremarkable proposition that they knew at the time they sold their products that their products could cause harm if misused," he said.
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