In the past, mass tort litigation has arisen in the contexts of asbestos, tobacco, environmental contamination and handgun manufacturing. While the theory of public nuisance has found its way into court discussion in most of these contexts, recent lead paint litigation has opened a new chapter to the uncertainties that accompany the use of public nuisance in mass tort litigation. Specifically, a question of liability arises. While lead paint manufacturers may be ordered to follow a particular set of measures to eliminate the paint and its hazards, the answer to one critical question still remains uncertain: Who will ultimately bear the cost of carrying out such measures? The paint manufacturer or its insurer? There is yet to be a strong authoritative answer to this question. If these "costs of abatement" are considered to be legal in nature, the insurer will probably be responsible for the cost. If costs of abatement are equitable in nature, the manufacturer will most likely bear the burden. The economic impact to either party would be substantial. While courts would certainly be justified either way in deciding that costs of abatement are or are not covered by the paint manufacturers' insurance policies, for now it is a question that remains unanswered.
Greg J. Carlson,
Lead Paint: Who Will Bear the Cost of Abating the Latest Public Nuisance,
59 Hastings L.J. 1553
Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss6/9