alchemy in the courtroom?

44 Pages·2017·0.41 MB·English

by  Jennifer Cook

ALCHEMY IN THE COURTROOM?
T T
HE RANSMUTATION OF
P N L
UBLIC UISANCE ITIGATION

Please stand by, the program will

begin momentarily.
Richard Faulk

Mr. Faulk is a Counsel with Davis Wright Tremaine LLP in the firm’s
Washington, DC office. He is a seasoned litigator with over three decades
of trial and appellate experience in environmental and toxic torts, including
air and water pollution class actions, CERCLA cost recovery claims, and
defense of toxic tort cases. Mr. Faulk has significant federal and state
appellate experience, including arguments before the U.S. Supreme Court,
and en banc Courts of Appeals, especially in environmental and mass tort
cases. He has written extensively on public-nuisance litigation, including a
co-authored 2014 paper for Washington Legal Foundation that won a
Burton Award for Distinguished Legal Writing.
Neil Merkl

Mr. Merkl is a Partner with Kelley Drye & Warren LLP in the firm’s New York,
NY office. He is a commercial lawyer, litigator and trial attorney with more than
thirty years of experience in contract, commercial law and civil litigation. Mr. Merkl
represents innovative businesses that are facing unprecedented and unpredictable
exposure to extreme litigation risk because their disputes arise from new products,
new methods, new technologies, and complex subject matters unfamiliar to judges
and jurors. He serves on the Commercial Division Advisory Council, which is
charged with advising on matters concerning the Commercial Division of the
Supreme Court of the State of New York.
Public Nuisance:
• Described as “notoriously contingent and unsummarizable,”
Pgerneorabtiolnes mof leagatli wcr it–er sb exuprte sPseed trhseiir sfrtusetrnatito n with
it “in the most unhappy terms.”

• In 1877, Horace Wood described it as a “wilderness of law.”

• Dean Prosser said it was a “legal garbage can” full of
vagueness, uncertainty and confusion.”

• Richard Eptstein claimed that nuisance law “does not work
on a moral or deductive principle”

• Justice Blackmun said that “one searches in vain for anything
resumbling a principle in the common law of nuisance.”
Public Nuisance:

nua nce:

What’s the Big Deal?
What exactly is a
• An “act or omission” which “obstructs or causes inconvenience or
damage in the exercise of rights common to all.” Prosser, Handbook of
“Public Nuisance?
the Law of Torts, Sec. 72 at 566 (1941).

• An “unreasonable interference with a right common to the general
public.” Restatement (Second) of Torts, Sec. 821B(1)(1979).

• The interferernce must be to a public right, not a private one. The test is
not the number of persons annoyed, but the by possibility of annoyance
to the public by the invasion of its rights. Ganna v. Smith & Wesson
).
Corp., 780 A.2d 98, 104 (Conn. 2001

• Intuitively, it seems that the manufacture and sale of products will rarely,
if ever, violate a public right. Products are typically used by individual
consumers – not the public. The number of persons injured isn’t the test
– it’s the nature of the right, whether individual or the general public.
What exactly is a
• “The harm must be substantial – one that materially
in“tPerfuerebs lwicit hN thue iosradinnarcye p.”hy sical comfort of human
existence according to plain, sober and simple notions.”

• “Unreasonable interference” with a public right requires
consideration of (1) the impact on “public health, safety,
peace, comfort or convenience,” (2) whether it is proscribed
by statute, (3) whether it is of a continuing, long-lasting
nature and the defendant knows that it has a “significant
effect on the ongoing harm.”

• NOTHING is “exactly” a public nuisance. The tort is one of
the most subjective causes of action at common law.
• Is the Opioid epidemic a public nuisance? Did the
Ephxartmraaceoutricadl cionmaparnyies Ecrelaates itt?i city

• Is childhood lead poisoning a public nuisance? Are lead paint
manufacturers responsible?

• Are noise and light contamination produced by permitted
hydraulic fracturing and drilling operations a public nuisance? Are
the drilling operators responsible?

• Is PCB contamination of West Coast Rivers bays and estuaries a
public nuisance? Is the PCB manufacturer responsible?

• Are rising sea levels that threaten coastal cities and residences a
public nuisance caused by the fossil fuel companies’ exacerbation
of global warming?
COMMON LAW ORIGINS
• “Public nuisance” actions originated in England and
were originally prosecuted by the sovereign as a
criminal offense.

• Generally used to redress situations that imposed on a
right owned by the public at large, rather than private
persons, e.g., blocking roads, sidewalks, unsanitary
conditions and immoral activities.

• American courts adopted English common law and its
recognized causes of action, including public nuisance.
EXPANSION AND CONTRACTION
• The industrial revolution prompted courts to apply the doctrine to an
increasing variety of situations in a more complex society.

• Environmental claims were recognized for spills and dumping into
streams, for polluting public water supplies, damaging or obstructing
public sanitation facilities, and for other interference with public
health and safety.

• In each instance, the courts focused on the interference with a public
right, not impacts on the rights of individuals on their private property
or in their private residences.

• As society emerged from the Great Depression, governmental
regulations proliferated and their enforcement resulted in the decline
of public nuisance litigation as a means of redressing public harms.
Not even mentioned in the Restatement (First) of Torts (1939).