Game Over? Why Recent State Supreme Court Decisions Should End the Attempted Expansion of Public Nuisance Law

201062 Oklahoma Law Review 629

Over the past decade, public nuisance theory has been the tort de jour for speculative, high-publicity, and high-stakes lawsuits brought by state attorneys general and contingency-fee lawyers against product manufacturers. Plaintiffs have been attempting to convert what are in reality class-action-size products liability lawsuits into government-led public nuisance claims in an effort to dodge traditional products liability defenses, such as product identification, causation, and statutes of limitation. Now, several of these cases have concluded, and four state high courts, a state legislature, and a jury have all reached the same result. In each instance, the attempt to expand public nuisance beyond its original moorings failed. As several high courts have now explained, these types of cases fit neither the character nor elements of the tort of public nuisance.

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