On May 5th, a Pennsylvania appellate court unanimously held that the tort of public nuisance does not make product manufacturers liable for downstream risks associated with products. The decision carries important implications for public nuisance litigation against manufacturers of products in other sectors, including in climate litigation.

In the case, Atlantic Richfield Company, et al. v. The County of Montgomery, Pennsylvania, the county sought to subject former manufacturers of lead paint to liability under public nuisance law for the effects of lead paint in residential structures throughout the county. First, the court explained that product-based cases do not involve public rights that are governed by public nuisance law. Public nuisance involves only those rights that are “collective in nature,” such as the right to use a public road. Health issues related to lead paint exposure, the court continued, “are akin to the individual rights ‘not to be assaulted or defamed or defrauded or negligently injured’ . . . The distinction between public and individual rights still holds even in instances where the individual rights of a large number of persons have been affected.”

The court went on to quote extensively from University of Maryland Law Professor Don Gifford’s article, Public Nuisance as a Mass Products Liability Tort, which explains the history and limitations of the tort of public nuisance. As Gifford explained—and the court quoted—“The manufacturer and distribution of products rarely, if ever, cause a violation of a public right as that term has been understood in the law of public nuisance.”

Second, the court explained that product manufacturers are generally not the cause of any public nuisances resulting from the downstream use or misuse of their products. That’s why product liability, not public nuisance law, is the body of law that governs harms caused by products. Product liability laws focus on issues manufacturers can control, namely not selling defective products. Here, the court agreed that “the County’s claim is essentially a products liability claim in the guise of a public nuisance action” and, therefore, must be dismissed. 

When the case was filed, the NAM’s General Counsel Linda Kelly and MAP’s Special Counsel Phil Goldberg co-authored an op-ed in the Allentown, Pennsylvania Morning Call identifying these very problems with this litigation. They also drew parallels between these cases and the climate cases where manufacturers of certain energy products were being sued under the tort of public nuisance over climate change. The pair noted:

1. “Before 1950, public health officials considered lead paint to be beneficial. The durability of lead in paint allowed walls to be washed, and sanitizing rooms was critical for fighting contagious diseases. In fact, many public health agencies required lead paint for public housing.”
2. “Over the last 25 years, a handful of trial lawyers have been going around the country trying to make money off the backs of manufacturers and their employees. They recruit local governments to file lawsuits against the manufacturers over product risks, even though the products were lawful and beneficial to the public. Most courts have exposed these lawsuits as misguided.”
3. “What has become clear from these lawsuits is that paint companies today are no more responsible for the harms caused by old, deteriorated lead paint than the rest of us. These lawsuits are purely about money. The lawyers are taking them on a contingency fee basis and stand to make tens of millions of dollars if any court allows these lawsuits to go forward.”
4. “Paint companies are not the only manufacturers targeted by such lawsuits. Since 2017, more than a dozen lawsuits have been filed against energy manufacturers by cities and counties across the country seeking to make them pay for effects of global climate change. Climate change is a major issue for everyone. We cannot litigate our way out of climate change. Innovation, not litigation, is the solution.”
5. “[J]udges made clear that tort law, including public nuisance, are not appropriate for dealing with these problems. A manufacturer is not liable for selling a lawful, nondefective and useful product. Their resources are better spent on innovation and investing in people, products and processes.”

“The next time trial lawyers roll into town with lawsuits promising a payday, the government lawyers should listen to the sage advice our parents gave us: If a deal sounds too good to be true, don’t buy it. Hiring lawyers on a contingency fee basis may sound like a great, low-risk deal. But the cost of this litigation is to push manufacturing out of the state or even the country.