Developments In Public Nuisance Litigation Put Plaintiffs On The Defensive

Following the most recent decisions by the Missouri and New Jersey Supreme Courts, “the plaintiffs' 'public nuisance' initiative is clearly on the defensive,” according to Houston attorney, Richard O. Faulk, Litigation Department Chair of Gardere Wynne Sewell LLP. “The plaintiffs' public nuisance bar have now been rebuffed and rebuked in every state supreme court they have entered.”

Mr. Faulk further comments on recent public nuisance litigation developments:

"Last week's defense verdict in Wisconsin also shows growing public understanding – at the 'grass roots' – that mass tort litigation against the nation's industries is the wrong approach. Fundamentally, most judges and juries care about people, not causes, and they are truly concerned about personal situations affecting individuals, not abstract social issues that may (or may not) affect individual citizens.

"The right to individual justice runs deep in the American psyche, and citizens are rightly skeptical of those who neglect that right in favor of mass adjudication. Even in Rhode Island, it took two long trials to produce a verdict – and the second jury only found for plaintiffs after they were either denied the right to consider or instructed to disregard every common sense concern they otherwise might have. As many trial lawyers have learned the hard way, it is dangerous to presume on the time and patience of judges and juries to resolve impersonal and abstract questions that allegedly affect everyone in general and no one in particular.

"Although the course of 'public nuisance' litigation has not ended, and the resourcefulness and creativity of the plaintiff's bar cannot be underestimated, the risks of loss are rightly shifting away from the defendants. Now, those who seek social change and wealth transfers without true political dialogue – in the microcosm of the courtroom – must face the justifiable reluctance of those limited forums to redress ill-defined claims that allegedly impact 'public' interests, as opposed to personal concerns."

Gardere Wynne Sewell LLP, an AmLaw 200 firm, was founded in 1909 and is one of the Southwest’s largest full-service law firms. With offices in Austin, Dallas, Houston and Mexico City, Gardere provides legal services to private and public companies and individuals in areas of energy, litigation, corporate, tax, environmental, labor and employment, intellectual property and financial services.