WASHINGTON – In the wake of the U.S. Supreme Court decision to deny paint manufacturers' appeal of a California ruling requiring them to pay more than $400 million for lead paint remediation, companies could face significantly greater odds of litigation under the theory of "public nuisance."
In October, the Supreme Court denied appeals from Sherwin-Williams Co. and ConAgra Brands Inc., effectively affirming a California appeals court's ruling in the matter.
"The fact that the U.S. Supreme Court did not accept this case for review means the state court of appeals issued the last word on public nuisance law in California, at least to date," said attorney Nessa Horewitch Coppinger, of Beveridge & Diamond in Washington, D.C. "Public nuisance claims in the lead paint and environmental arenas are not new, but this could dramatically broaden potential claims in California."
Coppinger said she suspects "the court determined it was an issue of state law that did not raise broad or controversial enough issues to merit review."
Nessa Horewitch Coppinger Beveridge & Diamond
In November 2017, a California appeals court in San Jose ruled against a group of paint manufacturers in a years-long court fight with California cities and counties over whether the companies should be made to pay for alleged lead paint contamination dating back decades in homes and businesses throughout the state. A lower court judge had ordered the companies to pay $1 billion. While the appeals court pared those damages back, they still upheld the basic reasoning behind the legal action, that the lead paint made and sold by the paint companies constituted a public nuisance for which they should be held liable.
The paint companies appealed to the California Supreme Court, arguing the state court violated their constitutional rights, essentially punishing them for statements the companies made decades ago wihout establishing those statements actually led to the contamination problems. The California Supreme Court, however, upheld the ruling.
The companies then appealed to the U.S. Supreme Court, which declined to take up the case.
In light of those rulings, Coppinger said she believed "it will be important to watch whether other jurisdictions follow suit."
Elsewhere in the country, industries and companies are facing public nuisance mass actions over climate change, opioid addiction and gun violence.
But Coppinger also noted California law can actually also limit the applicability of the California appeals' courts decision outside of the Golden State.
"California has some peculiarities in its public nuisance law that are not widely applicable across the U.S., as the state "is a 'nullum tempus' state, meaning the statute of limitations does not run against the state," she said.
Coppinger noted other jurisdictions have "other interpretations of the scope of public nuisance law," citing the example of Rhode Island, which "has a lead paint public nuisance decision that reached the opposite conclusion from the California court."