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69 Def. Counsel J. 484 (2002)
Tort of Public Nuisance in Public Entity Litigation: Return to the Jungle

handle is hein.journals/defcon69 and id is 486 raw text is: Tort of Public Nuisance in Public Entity Litigation: Return to the Jungle? In the wake of the tobacco settlement, public entities have seized on this neither warranted nor appropriate action to avoid product liability law By Lauren E. Handler and Charles E. Erway III O VER THE past several decades, diffi- culties in proving product liability claims against individual manufacturers have caused the plaintiffs' bar to turn to alternative theories of industry-wide liabil- ity.' The latest theory-the tort of public nuisance-has become the foundation for many lawsuits by state and local govern- ments against entire industries for the harms their products allegedly have caused. The governmental entities in these suits seek reimbursement of the costs they claim were or will be incurred as a result of both legal and illegal uses of a product, such as the costs of police, medical and emergency services associated with the criminal use of handguns, the costs of pub- lic medical services expended on illnesses caused by cigarette smoking, monies spent for the removal of asbestos products from buildings, and public expenditures associ- ated with testing children for blood lead levels and the inspection and abatement of buildings that contain lead-based paint. Commentators have predicted that if these public nuisance lawsuits succeed, it will be the impetus for even broader claims against an even wider variety of products, from automobiles to alcohol to fatty foods.2 1. See, e.g., Jane B. Mallor, Guilt by Industry: Industry-wide Liability for Defective Products, 49 TENN. L. REV. 61 (1981). See also Richard Kaye, Annotation, Concert of Activity, Alternate Liabil- ity, Enterprise Liability or Similar Theory as Ba- sis for Imposing Liability upon One or More Manu- facturers of Defective Uniform Product, in Absence of Identification of Precise Unit or Batch Causing Injury, 63 A.L.R.5th 195 (1998). 2. See, e.g., Michael Debow, The State Tobacco Litigation and the Separation of Powers in State Governments: Repairing the Damage, 31 SETON 1ADC member Lauren E. Handler is a principal of Porzio, Bromberg & Newman, Morristown, New Jersey and a member of the firm's Litigation Department. A gradu- ate of Tufts University (B.A. 1975) and George Washington University (J.D. 1978), her practice encompasses complex civil litigation in such diverse areas as pharmaceutical and medical device prod- uct liability and medical malpractice. Charles E. Erway III, counsel at the same firm, holds a B.A. degree from Cornell University (1973) and a J.D. from Hasting College of the Law (1978). His practice is concentrated in the areas of litigation, with emphasis on nationwide products liability defense and on brief preparation. It is instructive to look at the cases that have attempted to use this tort where prod- ucts allegedly have caused harm, to assess the judicial response, and to analyze whether this cause of action does or should have a viable future. DEFINITIONS OF NUISANCE Traditional nuisance law had nothing to do with products. Rather, it concerned the abatement of bothersome activities, usually conducted on a defendant's land, that un- reasonably interfered either with the rights HALL L. REV. 563, 565 (2001). See also Bryce A. Jensen, From Tobacco to Health Care and Beyond- A Critique of Lawsuits Targeting Unpopular Indus- tries, 86 CORNELL L. REV. 1334 (2001) (suggesting health care industry will be major target of lawsuits); Richard L. Cupp Jr., State Medical Reimbursement Lawsuits after Tobacco: Is the Domino Effect for Lead Paint Manufacturers and Others Fair Game? 27 PEPP. L. REV. 685 (2000); Doug Morgan, What in the Wide, Wide World of Torts Is Going On? First Tobacco, Now Guns, 69 Miss. L.J. 521 (1999).

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