Northern California Record

Sunday, December 15, 2019

Trend in public nuisance lawsuits in California is cause for concern, lawyer says


By Rich Peters | Jul 12, 2019


LOS ANGELES – As a new wave of "public nuisance" lawsuits hits the California legal system, some experts are concerned about the move toward expanding the boundaries of tort law in the Golden State.

Phil Goldberg, a partner with Shook, Hardy & Bacon, whose firm was recently recognized as “California Super Lawyers,” weighed in on the issues with the Northern California Record

“The trend … is very concerning to the rule of law and is an attempt for contingency (fee) lawyers and localities to start suing manufacturers and others to say that ‘you made the products, you have to clean it up and you have to pay for this problem’ when the problem may have been nothing that was caused by the manufacturer at all,” Goldberg said.


An example of this sort of tort lawsuit was recently filed by Los Angeles County against Bayer, which last year purchased Monsanto. The suit alleges the company contaminated local waterways and the environment for decades with polychlorinated biphenyls (PCBs) used while manufacturing Monsanto products.

“The extent of PCB contamination is of very serious concern because PCBs are known to cause a variety of adverse health effects,” the 53-page court document said. “In humans, PCB exposure is associated with cancer as well as serious non-cancer health effects, including effects on the immune system, reproductive system, nervous system, endocrine system and other health effects. In addition, PCBs destroy populations of fish, birds, and other animal life.”

The lawsuit also states that from 1935 to 1979, Monsanto was the only manufacturer in the United States that intentionally produced PCBs for commercial use and that the most common trade name for PCBs in the United States was Aroclor, a chlorine compound, which was trademarked by the original Monsanto company.

However, Monsanto claims to have voluntarily stopped producing PCBs more than 40 years ago.

“When Monsanto sold PCB, it sold to many industrial and manufacturing customers, as well as the U.S. government, which put them to various uses,” the company said in a statement responding to the lawsuit. 

“Today, where there exists a need to clean up chemicals in the environment, the Environmental Protection Agency and state governments employ an effective system to identify dischargers and clean-up as necessary. We are still reviewing this lawsuit, but believe the complaint to be without merit and we will defend ourselves vigorously.”

But Monsanto isn’t the only manufacturer facing similar legal woes, and Goldberg doesn’t believe that these particular lawsuits, where state or local government hire outside lawyers on a contingency fee basis, are a good use of the legal system.

“Basically the communities are saying, ‘We don’t want to raise taxes to deal with this problem so let’s see who we can sue and see if we can get money from there,’" he said. 

"And they’re not looking at the rule of law; they’re not looking at whether that’s an appropriate use of government litigation; they’re just looking at it and saying, ‘It could be free money for us,’ but that’s not the way the civil justice system has ever worked and certainly not the way prosecutorial discretion has ever worked.”

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