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Recent Uptick in Public Nuisance Claim Filings Could Indicate Broader Trend

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Attorneys and legal scholars in the fields of toxic torts and environmental law are taking note of the growing popularity of public nuisance claims. These experts believe that, in a climate where class action lawsuits are becoming less and less available, and public regulation of environmental issues is decreasing, public nuisance claims may become an even more popular option for addressing issues that arguably relate to public health.

The popularity of public nuisance claims as a substitute for a claim that once would have been brought as a toxic tort began in the 1980s with claims against companies making or selling products containing asbestos. The 1990s brought a raft of claims by state attorneys general against tobacco manufacturers, resulting in an enormous multi-billion settlement and the increased promotion of public nuisance claims among mass tort law firms.

In recent years, public nuisance claims have become a common approach for seeking damages on behalf of alleged victims of harsh chemicals or other dangers; public nuisance claims have been brought against gun manufacturers and sellers, makers of lead paint, manufacturers of the gas additive MTBE, even opioids. Professor Jean Eggen of the Widener University Delaware Law School explained, “So long as there is an unreasonable interference with the public health, there is nothing that requires a public nuisance claim to arise from pollution or other land­based interferences.”

Eggen anticipates that public nuisance torts will become increasingly common should regulatory bodies like the EPA be weakened or eliminated entirely. “In an era in which federal enforcement may be lagging, public nuisance may provide public entities, such as states and municipalities, with a litigation alternative to waiting for enforcement that may or may not come. . . Looking forward, if the new administration eliminates and/or reduces many environmental regulations, the courts may provide recourse, and public nuisance may be an increasingly attractive cause of action because the relief available may be an injunction or the costs of abatement.”

It appears that public nuisance claims are also more frequently being used by government bodies. The Port of Portland, Oregon filed a claim against Monsanto in January of this year for contamination of public waterways with PCBs that the company had manufactured, but for contamination not directly caused by Monsanto. In response to the drinking water crisis in Flint, Michigan, the State of Michigan filed public nuisance claims against engineering firms with which it had worked. A public nuisance claim filed by the attorney general of California against lead paint manufacturers resulted in a $1.1 billion verdict in 2013. That verdict is currently being appealed by the defendant manufacturers.

While public nuisance claims are having a moment, they are not a home run for plaintiffs or state attorneys general. Professor Donald Gifford of the University of Maryland School of Law, an expert in toxic torts, observed that “most of the time these claims are being rejected.” Many experts are critical of using public nuisance claims in this way. Defense attorney Richard Faulk has studied and litigated in the field of toxic torts for years, and feels that public nuisance claims are a response to the death of the class action. “To some, the use of public nuisance as aggregative mass tort was an answer to the obstructions or limits on class actions.” In Faulk’s opinion, the public nuisance claim has become “so vague and malleable that it can accommodate almost every wrong.”

If you are facing a claim in the fields of insurance defense, toxic torts, or environmental law in New York, contact the capable and knowledgeable insurance defense attorney Richard A. Fogel for a consultation, at 516-721-7161.

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