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Home > Blog > Product Liability Defense > A New Trend That Could Transform Product Liability Defense: Adding Public Nuisance Claims

A New Trend That Could Transform Product Liability Defense: Adding Public Nuisance Claims


One of the latest trends in product liability litigation involves tacking on public nuisance claims in an attempt to claim that manufacturers have not only produced dangerous products, but also deceptively marketed them to consumers and failed to properly monitor their effects on the markets and these consumers. While, historically, these claims were unsuccessful in holding asbestos, gun, lead paint, etc. manufacturers liable, one judge in Oklahoma recently ordered Johnson & Johnson to pay damages in the amount of $465 million for allegedly “fueling the opioid epidemic” via the marketing of painkillers, and this was largely due to the public nuisance argument, i.e. that the addictive risks of their products caused a “public nuisance” in the form of the opioid crisis, violating the public’s right to be free from addiction. If there are additional, successful claims like these, tort law could effectively be transformed, and more and more nuisance claims could be tacked onto product liability claims, significantly affecting the field of product liability defense.

Nuisance Claims in Texas:

In Texas, a defendant engages in a public nuisance when they unreasonably interfere with a right common to the public by affecting public health safety, welfare, or order. This does not necessarily require intentional conduct, but can also result from negligent conduct as well. Specifically, nuisance claims must fall within one of three categories of conduct:

  • Intentional: where defendant acts with substantial certainty that interference results from their conduct, either knowing that their interference would result or believing that it would result. Plaintiff must prove intent to inflict injury
  • Negligent: defendant acted negligently or unreasonably and this created a nuisance injury
  • Strict liability: defendant undertook an abnormally dangerous activity and/or engaged in conduct involving an abnormally dangerous substance, even if they acted reasonably and took precautions

Previous Claims Against Other Manufacturers in Other Circuits

Previous public nuisance claims brought against asbestos manufacturers failed in the Eighth Circuit because the state public nuisance law at issue required the defendant to have control over the product when the injury occurred, which was not the case; at the time, it had already been distributed to consumers. The Eighth Circuit was specifically concerned about rewriting tort law and “morphing nuisance law into a monster that would devour in one gulp the entire law of tort.”

These same claims failed against gun and lead paint manufacturers as well for the same reasons. A number of courts have held that public nuisance law is not the appropriate vehicle for addressing mass tort actions like these, not only because plaintiffs had failed to identify a public right that was injured, but also because defendants could not exert control over what third parties did, illegally, with their products.

How The Fifth Circuit Has Ruled On Public Nuisance Claims

The Fifth Circuit, which encompasses Texas, has made similar rulings when it comes to public nuisance claims, finding that, when a public nuisance is alleged only by reason of the negligent manner in which a defendant’s conduct is performed or permitted, no right of recovery is shown independently of the existence of negligence. In order for there to be a legal duty, it must be foreseeable under Texas law. However, the Fifth Circuit Court of Appeals has allowed public nuisance lawsuits involving climate change allegations against certain coal-fired utility defendants to proceed, although that particular decision was based on Mississippi’s public nuisance statute, not Texas’.

If You Are Having a Product Liability or Nuisance Claim, Contact Our Defense Attorneys

When manufacturers face product liability claims, having qualified, experienced defense representation is essential, especially given that additional, novel claims can  always be tacked onto the litigation. At the law firm of Colvin, Saenz, Rodriguez & Kennamer, L.L.P., our Brownsville product liability defense attorneys provide skilled representation to manufacturers facing any type of liability claim. Contact our office today to find out more.






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