Enforcing The Line Between Product Liability And Public Nuisance

• Published date: 11 May 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Personal Injury
• Law Firm: Jones Day
• Author: Mr Leon F. DeJulius Jr., Traci L. Lovitt, Sharyl A. Reisman and Yaakov M. Roth

In Short

The Situation: Courts are increasingly confronted with attempts by the plaintiffs' bar to repackage traditional product liability claims as public nuisance claims, as a ploy to circumvent various elements of product liability law.

The Result: Jones Day won a significant victory for Chevron in paraquat multidistrict litigation ("MDL"), convincing the MDL court to reject the public nuisance claims as disguised product liability claims.

Looking Ahead: After some outlier decisions expanding the scope of public nuisance liability beyond its traditional metes and bounds, there is an emerging trend of courts-across states and contexts-limiting nuisance liability to its traditional confines. From a public policy standpoint, this trend is encouraging.

Around the country, creative plaintiffs' lawyers have been repackaging product liability claims as public nuisance claims to avoid dismissal. Plaintiffs have used this maneuver to attempt an end-run on important product liability limitations, including requirements to show that a product is defective, a reasonable and available alternative design, and proximate causation of injury. Plaintiffs also try to avoid the product liability statutes of limitations or repose. While some outlier courts have allowed plaintiffs to repackage their product liability claims in this way, courts in recent high-profile litigation have explained that selling a lawful product cannot give rise to nuisance liability.

In February 2022, the court overseeing the paraquat MDL joined this emerging trend. Paraquat is a product used as a herbicide to control weeds and grasses in fruit and vegetable fields and orchards. The U.S. Environmental Protection Agency has consistently concluded-including as recently as last year-that paraquat does not cause Parkinson's disease, and continues to permit the product to be sold in the United States. Nonetheless, hundreds of plaintiffs have sued manufacturers and distributors of paraquat-including Chevron, whose predecessor distributed the product more than 35 years ago-based on the allegation that the product causes Parkinson's disease. Many plaintiffs asserted public nuisance claims in addition to their standard design-defect and failure-to-warn claims.

The MDL court granted Chevron's motion to dismiss the plaintiffs' public nuisance claims, rejecting their attempt to repackage their product liability claims in this new garb. The MDL court first explained that courts have "been wary ... of extending...