Product Liability -- 2017

California v. Conagra Grocery Products Co.   (Cal. Ct. App.)

Validity of public nuisance claims

This is a case brought by 10 California cities and counties to sue lead pigment manufacturers in what is essentially a class action on behalf of California residents using a public nuisance theory. In 2006, the case raising essentially private claims was allowed to proceed without proof of an affected public right. The court found that the governments needed to prove that the companies unreasonably interfered with a public right in a way that caused a public nuisance.

Subsequently, the trial judge required neither unreasonable interference nor causation, and ordered the defendants to pay $1.1 billion to replace or contain lead paint in millions of homes. That ruling was appealed.

The NAM and other business groups filed an amicus brief 2/23/15 highlighting several problems with the court's ruling. The court watered down the government's burden of proof, allowing suits against companies based solely on the fact that the products had foreseeable risks of harm, regardless of whether the companies knew of the harm, that it was caused by consumer misuse, that a competitor made the product, or that the product was sold decades ago. We argued that this version of public nuisance strips away traditional product liability elements and defenses. The ruling does not satisfy the standards established earlier by the appeals court, and several other states have properly rejected comparable attempts to turn public nuisance into a "super tort."

On 11/14/17, the court largely affirmed the trial court, ruling that the companies are liable for remediation. It limited the remediation requirement to houses built before 1951, since the defendant companies did not promote the use of lead paint after that. It held the companies liable not for selling the paint, but for promoting it in advertisements and industry association promotional campaigns. Because all the companies participated in the advertising, they are liable regardless of their share of the market. The court ruled that a public nuisance is anything that substantially and unreasonably interferes with "the comfortable enjoyment of life or property" affecting an entire community or neighborhood. The companies were considered to have knowledge of the hazards of lead exposure to children as early as 1910, since a lawyer for their trade association attended congressional hearings and lobbied on the subject.

The NAM believes the court erred by expanding the law of public nuisance. Several other states have soundly rejected this legal theory with respect to lead pigment. The ruling is of great concern to manufacturers because it opens the door to litigation against any industry, with a malleable and unbounded notion of tort law.

Related Documents:
NAM amicus brief  (February 23, 2015)


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