Ohio Supreme Court Rejects Attempt to Scuttle Public Nuisance Legislation

Ohio has officially joined the growing list of states which have rejected the latest “mass tort” experiment devised by ambitious public officials and the entrepreneurial plaintiffs' bar.

The Aug. 1 ruling “rebuffed the Governor and the Attorney General's attempt to flaunt the legislative prerogative and vindicated the General Assembly's decision to clarify the application of Ohio's product liability statue to public nuisance cases,” says Houston attorney Richard O. Faulk, Chair of the Litigation Department at Gardere Wynne Sewell LLP.

“One cannot imagine a more stinging rebuke to Attorney General Marc Dann and the contingent fee counsel who participated in the onslaught of Ohio public nuisance litigation,” he says.

Mr. Faulk offers the further comments:

"Although the Court's ruling on the intricacies of how laws are enacted is certainly important to Ohio jurisprudence, the national message – which can be understood in the context of the past legislative session – is vastly more critical. This ruling ensured that an important clarification of pre-existing Ohio law remains on the statue books. The statue was passed after numerous cities, and ultimately the State of Ohio, filed 'public nuisance' cases against lead paint manufacturers last year. Thereafter, the General Assembly decided to clarify pre-existing Ohio law. The clarification stated that any suit that asserts liability on the basis of a product, such as lead paint, is governed by the traditional causation requirements of product liability cases mandated in Ohio's product liability act. Under the clarification, merely labeling a case as a 'public nuisance' action does not excuse plaintiffs from proving product identification and proximate cause.

"The newly elected Democratic Governor elected to veto the legislation after he took office – after the constitutional time period for doing so passed. Although the legislation was valid and effective without the Governor's signature after that period passed, the newly elected Secretary of State sent the legislation back to the Governor, who then vetoed it. The Ohio legislature then filed an original suit in the Ohio Supreme Court to declare the Governor's veto invalid. In resolving the constitutional standoff, the Ohio Supreme Court held that the Governor could not ‘undo’ the efficacy of the law after the deadline for doing so expired.

"This result is important because at plaintiffs' counsel typically argue that proof of product identification and proximate cause should be excused or minimized in public nuisance cases involving allegedly defective products, such as lead paint. Indeed, both of those requirements were discarded by the Rhode Island trial court in the name of progressive 'common law' necessity. Excusing the absence of such proof in the Rhode Island court's jury instructions produced a grossly unfair verdict for the State, and requiring those showings will preclude its recurrence in Ohio. As a result, even though today's opinion does not expressly address the public nuisance controversy, it vindicates the General Assembly's clarification - and provides clear grounds for dismissing every single public nuisance case against the paint industry in Ohio.

"It is an unfortunate 'sign of the times' that the Ohio legislature felt it was advisable to pass such legislation to ensure fairness to litigants in Ohio. Nevertheless, it was the legislature's right to do so, and the Ohio Supreme Court's decision today guarantees that the General Assembly's wisdom will be respected – much to the disappointment of those who would sacrifice sound legal principles to reach their supposedly altruistic result. As a result, public nuisance litigation against product manufacturers is, for all practical purposes, dead in Ohio. If any further confirmation of that death is necessary, it seems that the Ohio Supreme Court will provide it upon request."

Richard O. Faulk is the author of numerous papers on public nuisance issues. Those articles are posted on the law firm's (www.gardere.com) under Mr. Faulk's biography.

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.