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http://www.thetimesonline.com/artic...illinois/cf3d46a5c5d4610b86256c9b00002bff.txt
Public nuisance lawsuits meant to protect citizens
BY COREY SIMPSON
Medill News Service
CHICAGO -- Public nuisance lawsuits have become, well, a public nuisance lately for manufacturers of legal products being attacked by municipalities across the country.
Chicago is one of many cities and counties that are using public nuisance laws to force lead-paint companies and gun makers to take responsibility for the damage their products have caused.
Chicago's Deputy Corporation Counsel Lawrence Rosenthal said public nuisance laws are intended to protect citizens from threats to their safety. He called the lawsuits against the gun and lead-based paint manufacturers necessary because both products have caused great harm to area residents.
On Nov. 12, 1998, the city of Chicago became the first city in the nation to claim gun manufacturers, distributors and dealers were creating a public nuisance by selling handguns to the city's residents. The city's suit, filed in Cook County Circuit Court, alleged the gun industry intentionally interfered with the city's ban on handguns by marketing and distributing guns to Chicago street gangs and criminals.
"We're seeking $433 million in damages from 38 retailers, distributors and manufacturers," said Chicago Mayor Richard M. Daley when he announced the lawsuit. "We're going to hit them right where it hurts -- in their bank accounts -- and we won't stop hitting until they stop flooding our streets with guns."
Twenty cities and counties including Miami-Dade, Boston, Atlanta, Detroit, Los Angeles and Philadelphia, followed Chicago in filing similar public nuisance lawsuits against the gun manufacturers.
The city didn't stop there. On Sept. 5, 2002, Chicago filed a lawsuit in
Cook County Circuit Court against former lead-based paint manufacturers, claiming the paint is a public nuisance because almost 300,000 Chicago children are at risk of being poisoned each year.
Although lead has not been added to paint for almost 50 years, city officials believe lead-based paint in homes, apartments and commercial buildings built before 1955 poses a serious threat to Chicago's children.
The lawsuit is asking the paint manufacturers to pay for the removal of lead paint from any residence in Chicago that is accessible to children.
According to Jennifer Hoyle, a spokeswoman for the city's law department, each year the city spends almost $10 million on lead abatement.
Like the city's gun lawsuit, Chicago joined other cities such as Boston, Baltimore, St. Louis and Philadelphia that also are suing the paint manufacturers.
Since 1998, more than 60 public nuisance lawsuits have been filed against the gun and paint industries, but judges and juries have not been receptive to the legal arguments presented by the municipalities.
The director of the Center for Legal Policy at the Manhattan Institute, Judyth Pendell, said the paint manufacturers have never settled or lost any public nuisance case brought against them.
When the first lead paint case went to trial in October 2002, a Rhode Island jury could not agree whether the paint was a public nuisance. After hearing seven weeks of testimony, the jury was deadlocked 4-2 in favor of the paint manufacturers, and the case ended in a mistrial.
A week later, a Middlesex County, N.J. judge dismissed a lawsuit filed by numerous New Jersey municipalities against the paint industry. In her decision Judge Marina Corodemus said towns, not courts, should enforce laws that require buildings to be safe and properly maintained.
The gun industry boasts a similar record of success against public nuisance lawsuits.
Jim Dorr, an attorney for gun manufacturer Strum, Ruger and Co., said of the 21 cases against the gun industry, 11 have been dismissed, eight more that were dismissed are on appeal, and two are still pending.
According to Dorr, the latest victory for the gun manufacturers happened on Dec. 3 in Wilmington, Del., when Judge Fred S. Silverman dismissed a public nuisance lawsuit against them.
The city of Boston's lawsuit against gun manufacturers was also an example of why public nuisance lawsuits will not succeed, he said. On March 27, 2002 Boston voluntarily dismissed its own lawsuit as the case was making its way to trial. Dorr said the city backed out of the case after realizing gun manufacturers were helping to stop gun violence, not create it.
According to Dorr, court decisions rejecting the public nuisance argument are helping to reverse the litigation craze. Dorr said public nuisance lawsuits gained popularity after the tobacco industry agreed to pay $21.3 billion to settle its legal disputes in the late 1990s.
But gun and lead paint manufacturers are quick to point out the differences between their products and tobacco. Bonnie Campbell, a spokeswoman for the paint manufacturers, said the paint industry is nothing like the tobacco industry.
"First, tobacco companies are still making their product; lead paint is no longer made," she said. "Second, when lead paint is used as it is intended, it's a useful product. It's not harmful. Third, there is no evidence anywhere that paint companies concealed information. In fact, the companies themselves funded research."
Timothy Lynch, of the CATO Institute, a public policy group in Washington, D.C, said municipalities are misusing the public nuisance theory to go after legitimate companies.
"I think this public nuisance theory is really a shakedown racket where a number of parties get together to shut down an industry," Lynch said. The cities argue "very flimsy, bizarre legal theories" and sue many parties in multiple lawsuits to increase the industries' legal costs, he added.
While Lynch said he believes the industries could win most of their cases if they went to trial, the high legal bills coupled with bad publicity eventually drive the manufacturers to the bargaining table.
Lynch also joins a number of critics of public nuisance lawsuits who say the cases are another way for cities to enforce their own failed social policies.
He said Chicago filed its lawsuit against the gun manufacturers because city officials cannot admit their gun control policies do not worked.
The judges in the New Jersey lead-based paint case and the Delaware gun case said they dismissed the lawsuits because each asked the court to take on a legislative role.
In his decision in favor of the gun makers, Judge Silverman wrote: "Handgun violence is a scourge. But as much as the court would support efforts to reduce the problem, the court will not twist a jury trial involving municipal costs into a wildly expensive referendum on handgun control. The mayor and the city must find another means to an end."
Silverman also said the Wilmington, Del. lawsuit was part of a nationwide effort to put the gun industry out of business.
Judge Corodemus said that if she allowed the lead paint case in Middlesex County, N.J. to continue, the trial "would constitute judicial overreaching and an unprecedented encroachment into the legislative function."
Rosenthal said he does not believe the decisions in Rhode Island, New Jersey and Delaware will effect Chicago's cases.
"In general, the litigation decisions are split just about 50-50, and there is no trend" he said. "With anything novel in the law, there is going to period of time before the dust is settled."
Richard Epstein, a law professor at the University of Chicago, added that while public nuisance lawsuits have been met with hostile receptions in many jurisdictions, a few victories can make up for a lot of defeats.
On Nov. 4, 2002, the Illinois Appellate Court ruled that Chicago could continue its public nuisance lawsuit against the gun manufacturers, distributors and dealers.
"Whatever else is going on across the country, the Illinois Appellate Court has enforced the public nuisance idea," Rosenthal said. He added that the court agreed that gun manufacturers could not threaten public safety through their marketing practices.
Chicago's lead-based paint case is still pending.
