In re Lead Paint Litigation

• Citation: 191 N.J. 405,924 A.2d 484
• Decision Date: 15 June 2007
• Docket Number: A-73 September Term 2005.
• Parties: In re LEAD PAINT LITIGATION.
• Court: United States State Supreme Court (New Jersey)

924 A.2d 484

191 N.J. 405

In re LEAD PAINT LITIGATION.

A-73 September Term 2005.

Supreme Court of New Jersey.

Argued November 28, 2006.

Decided June 15, 2007.

Ezra D. Rosenberg, Princeton, argued the cause for appellants, American Cyanamid Co.; Atlantic Richfield Company; Cytec Industries, Inc.; E.I. duPont de Nemours and Company, ConAgra Grocery Products Company; Millenium Inorganic Chemicals Inc.; NL Industries, Inc. and Sherwin-Williams Co. (Dechert, attorneys for Atlantic Richfield Company; Coughlin Duffy, attorneys for American Cyanamid Co. and Cytec Industries, Inc.; Riker, Danzig, Scherer, Hyland & Perretti, attorneys for E.I. duPont de Nemours and Company; Lowenstein Sandler, attorneys for ConAgra Grocery Products Company; Porzio, Bromberg & Newman, attorneys for Millenium Inorganic Chemicals Inc.; McCarter & English, attorneys for NL Industries, Inc. and Herrick, Feinstein, attorneys for Sherwin-Williams Co.; Mr. Rosenberg, Joyce Chen Shueh, Timothy I.

Duffy, David W. Field, Anne M. Patterson, Lauren E. Handler, Steven P. Benenson, Andrew T. Berry and Ronald J. Levine, on the briefs).

Fidelma Fitzpatrick, Providence, RI, a member of the Rhode Island, Massachusetts, New York and District of Columbia bars and Michael Gordon argued the cause for respondents, City of Bayonne; City of Camden; Borough of Collingswood; Cumberland County; City of East Orange; County of Essex; City of Gloucester; Gloucester County; Borough of Highland Park; Township of Hillside; Township of Irvington; City of Jersey City; City of Linden; City of Newark; Borough of North Plainfield; City of Orange; City of Passaic; Town of Phillipsburg; City of Plainfield; Borough of Roselle; Borough of Roselle Park; City of Union City; County of Union; Township of Union; Town of West New York and Township of West Orange (Gordon & Gordon, attorneys for City of Newark and Township of West Orange; Morris G. Smith and Florio, Perrucci, Steinhardt & Fader, attorneys for City of Camden; Florio, Perrucci, Steinhardt & Fader, attorneys for Borough of North Plainfield; City of Gloucester; Town of Phillipsburg; Borough of Collingswood and County of Gloucester; Florio, Perrucci, Steinhardt & Fader and Hobbie, Corrigan, Bertucio & Tashjy, attorneys for City of Plainfield; Jon L. Gelman, Michael P. Burakoff and Scarinci & Hollenbeck, attorneys for City of Bayonne; City of Jersey City; City of Passaic; City of Union City and Town of West New York; Mr. Gelman, Mr. Burakoff, James J. Plaia and Marvin T. Braker, attorneys for City of Orange; Basile & Testa, attorneys for County of Cumberland; Mr. Gelman, Mr. Burakoff and Bross, Cummings & Pereira, attorneys for Township of Irvington and County of Essex; Bross, Cummings & Pereira, attorneys for City of East Orange; Mr. Gelman, Mr. Burakoff and Mr. Plaia, attorneys for City of Linden; Township of Hillside; Borough of Roselle; Borough of Roselle Park; County of Union and Borough of Highland Park; Ms. Fitzpatrick, Mr. Gordon, Mr. Smith, Mr. Burakoff, Mr. Gelman, Mr. Plaia, Mr. Braker, Michael J. Perrucci, Glenn A. Clouser, Norman M. Hobbie, Jacqueline DeCarlo, Michael L. Testa, Michael Bross, Sheldon Bross and Steven L Schepps, on the brief).

Ronald K. Chen, Trenton, Public Advocate of New Jersey, argued the cause for amicus curiae Public Advocate.

Michael J. Haas, Assistant Attorney General, argued the cause for amicus curiae Department of Health and Senior Services (Stuart Rabner, Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Rachana R. Munshi and Melissa H. Raksa, Deputy Attorneys General, on the brief).

Steven J. Picco, Princeton, submitted a brief on behalf of amicus curiae Chemistry Council of New Jersey (Reed Smith, attorneys).

Kenneth J. Wilbur, Florham Park, submitted a brief on behalf of amici curiae Johnson & Johnson, New Jersey Business & Industry Association, New Jersey State Chamber of Commerce and Commerce and Industry Association of New Jersey (Drinker Biddle & Reath, attorneys).

David G. Evans, Pittstown, submitted a brief on behalf of amicus curiae Pacific Legal Foundation.

Stacy Alison Fols, Cherry Hill, submitted a brief on behalf of amicus curiae Product Liability Advisory Council, Inc. (Montgomery, McCracken, Walker & Rhoads, attorneys).

Justice HOENS delivered the opinion of the Court.

In these consolidated complaints, twenty-six municipalities and counties seek to recover, from manufacturers and distributors of lead paints, the costs of detecting and removing lead paint from homes and buildings, of providing medical care to residents affected with lead poisoning, and of developing programs to educate residents about the dangers of lead paint. Although the complaints initially sought recovery through a wide variety of legal theories, we are called upon to consider only whether these plaintiffs have stated a cognizable claim based on the common law tort of public nuisance. Because we conclude that plaintiffs cannot state a claim consistent with the well-recognized parameters of that tort, and because we further conclude that to find otherwise would be directly contrary to legislative pronouncements governing both lead paint abatement programs and products liability claims, we reverse the judgment of the Appellate Division and remand for dismissal of the complaints.

I.

This litigation began on December 14, 2001, when the City of Newark and its mayor filed a complaint asserting claims sounding in fraud, public nuisance, civil conspiracy, unjust enrichment, and indemnification. Named as defendants were a large number of companies that had manufactured lead pigments or lead paints, or that were the corporate successors to the manufacturers of those products.¹ Shortly thereafter, twenty-five other plaintiffs² filed complaints similar to the one filed by the City of Newark. By order dated February 11, 2002, this Court designated "all pending and future litigation involving damages or other relief arising out of the manufacture, sale, distribution and/or use of lead-based paint" as a mass tort. See R. 4:38A. Pursuant to that order, all of the complaints were transferred to a single vicinage and assigned to one judge for management.

A.

Defendants moved to dismiss the complaints for failure to state a claim on which relief could be granted. See R. 4:6-2(e). After briefing and oral argument, the trial court issued an order granting defendants' motion, accompanied by a lengthy written decision.³

The trial court rejected the complaint both generally and based upon a count-by-count analysis. As a general proposition, the trial court concluded that because plaintiffs are municipalities and similar governmental entities, they had only such powers as are granted to them by statute or our constitution. Viewed in that light, the trial court first criticized plaintiffs' complaints generally as overstepping those powers, referring to the complaints as "seek[ing] an unwarranted and impermissible expansion of [plaintiffs'] role as local government entities to act on behalf of the public." The trial court therefore found that these plaintiffs were not authorized to maintain the action, regardless of any of the particular theories asserted.

The court also addressed each of those theories, and, in particular, rejected plaintiffs' argument that their complaints sounded in public nuisance. First, noting that plaintiffs drew their support for this theory of recovery from the legislative declaration of public nuisance contained in the Lead Paint Act, the court reasoned that all of the damages plaintiffs sought to recoup would be barred by the municipal cost recovery doctrine. Second, the trial court reasoned that all of defendants' acts that plaintiffs asserted gave rise to their public nuisance claims were, in reality, governed exclusively by products liability theories. Third, the court reasoned that the Legislature, in enacting the Lead Paint Act, intended to act comprehensively, with the result that other remedies, including the common law remedy of public nuisance, were not available to these plaintiffs. Finally, the trial court rejected the complaints based upon a proximate cause analysis, reasoning that defendants' lack of control of the premises where the nuisance could be found was fatal to plaintiffs' recovery of damages.

B.

The Appellate Division's analysis of the public nuisance claim led it to reach the opposite conclusion. First, the appellate panel rejected the trial court's conclusion that "to permit this action to proceed would offend the constitutional principle of separation of powers by sanctioning a remedial process independent of that created by the Legislature" when it enacted the Lead Paint Act. Instead, the panel reasoned that permitting plaintiffs' public nuisance claim "to proceed would not subvert the goals of the [Legislature], . . . . [because it would] proceed on a parallel track that need not ever intersect with the mechanism set forth" by the Legislature. In so concluding, the panel utilized a preemption analysis and coupled it with the observation that "[a]bsent [an] express limitation, courts must assume that the statute was not intended to bar any [inconsistent] common-law remedy." Referring to the goals of the complaints as "complementary" to the remedies authorized by the Lead Paint Act, the panel found no separation of powers violation.

The Appellate Division also rejected the trial court's municipal cost recovery rule analysis, questioning the continued viability of that theory and its application to public nuisance claims. Having therefore rejected the trial court's general grounds for dismissing the complaints, the panel then turned to a discussion of the trial court's more specific conclusions about the viability of this public nuisance claim.

In analyzing the parameters of a public nuisance claim, the panel held that parties, like defendants, may be liable for a public nuisance even if those parties...