Summary
Highlights
Richard Lewis is introduced as a partner at Haasvelt, specializing in mass torts and environmental threats. He highlights his experience, including a settlement for South African gold miners with occupational lung disease and involvement in various mass tort and product liability cases. Lewis begins his talk by acknowledging Ralph Nader's influence and then introduces the central theme: the difficult relationship between tort law and public health, arguing that the legal system is not adequately addressing widespread public health issues like opioid crises, hormone therapy, and exposure to toxic chemicals that affect communities rather than individuals. He criticizes the prevailing 'car accident' model of tort law as insufficient for complex, latent public health problems that affect groups over long periods.
Lewis discusses the public nuisance doctrine as a tool for addressing community public health problems, using childhood lead poisoning as a prime example. He explains how lead paint, despite being a well-understood neurotoxin, caused widespread brain damage in children, especially in low-income areas due to deteriorating housing. States and cities have used public nuisance claims against lead paint manufacturers to fund abatement efforts. He cites successes in Wisconsin and California, where courts acknowledged the public nuisance and ordered manufacturers to contribute to abatement. However, he also details failures in other states like New Jersey, Rhode Island, St. Louis, and Chicago, where courts rejected the theory based on arguments such as lead paint not involving a 'public right' (being an 'interior property issue'), manufacturers no longer controlling the nuisance, or that lead paint was a 'legal product' at the time of sale.
Lewis highlights the potential and current application of the public nuisance doctrine in other major public health and environmental cases. He mentions its successful use in Oklahoma's opioid litigation and its current application in ongoing bellwether opioid cases. Furthermore, he discusses climate change litigation where cities are suing oil companies, seeking reimbursement for climate change damages, though these cases have seen mixed judicial responses. He also points to the successful use of public nuisance in MTBE (methyl tertiary-butyl ether) cases, where New York and New Hampshire successfully collected abatement funds from gasoline manufacturers for groundwater contamination, emphasizing the importance of aggregate proof rather than individual accountability for each spill.
Lewis explains the significant difficulties in using class-action rules for personal injury cases related to public health issues. He states that courts, starting about 25 years ago, largely prohibited using class actions for personal injury, citing the uniqueness of individual disease processes. This has impacted cases like Agent Orange, breast cancer from hormone replacement therapy, and asbestos exposure. He argues that this judicial stance ignores scientific advancements in epidemiology and toxicology that could establish common mechanisms of disease for groups. This effectively disables a powerful tool for collective redress in public health.
Lewis discusses the concept of medical monitoring, developed in the 1980s, which aims to provide preventive medical attention and early detection for individuals exposed to chemicals but not yet sick. Despite its public health benefits, courts have largely rejected its application for groups, claiming differences in individual disease processes and state laws. He criticizes this approach, arguing that if medical monitoring were allowed, it could prevent or mitigate illnesses. Instead, the current system often results in either massive individual payouts for those who become severely ill (like mesothelioma victims) or zero compensation for others with identical conditions, leading to a 'roulette system' of justice where preventative measures are neglected.
Lewis concludes by summarizing the status of the two legal tools. The public nuisance doctrine, while having mixed results, is showing potential in opioid and climate change litigation. He expresses particular interest in the climate change cases regarding global public health threats. Regarding class actions, he notes a recent positive development in opioid litigation where a 'negotiation class' was certified for governmental entities, allowing them to collectively negotiate. He also points out that class action rules are permitted for public health problems if both sides agree to a settlement, as seen in the NFL concussion litigation, but not for contested personal injury claims.