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Building a Fire Wall: Missouri and New Jersey Hold the Line Against Plaintiffs' Efforts to Expand the Law of Public Nuisance

By Eric G. Lasker

In its 2006 report on 'Judicial Hellholes',' the American Tort Reform Association ('ATRA') identified the plaintiff bar's aggressive use of public nuisance theories in product liability litigation as one of the key 'rising flames' that is threatening traditional judicial protections for defendants in the country's most plaintiff-friendly jurisdictions. As ATRA explained, 'personal injury lawyers and some attorneys general have been trying to move public nuisance theory far beyond its traditional boundaries in order to avoid the well-defined strictures of products liability law.' American Tort Reform Association, Judicial Hellholes 2006, at 9. In so doing, they seek to tilt the playing field dramatically in their favor by writing out of the common law a plaintiff's obligation of establishing actual causation, proximate causation, and control.

Historically, most courts have been properly resistant to this misuse of the public nuisance doctrine. See generally, Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541 (2006). These courts have recognized that the purpose of the public nuisance doctrine is to abate conduct that gives rise to injury to public lands or waterways or to rights common to the public as a whole, not to compensate individuals or entities allegedly injured by exposures to an alleged injurious product.

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