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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
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.
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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