Goldberg Cautions Against "Super Torts"

Shook Partner Phil Goldberg has written an op-ed for The Hill about the U.S. Supreme Court's potential grant of certiorari to a case centered on liability for lead paint removal. Goldberg asks, "In short, can local governments make businesses pay for the clean-up of downstream hazards associated with their products even when the companies did not cause the harms?"

The case involves a governmental effort to compel companies that sold lead paint before the 1950s to pay for a billion-dollar house-by-house cleanup program created in 2000. The government could not show which company sold the brands of paint used in each house, but the trial court approved the litigation, asking, "Shouldn’t we take advantage of this more contemporary knowledge to protect thousands of lives?"

"The answer to the trial court’s rhetorical question has been 'no' in nearly every other place this litigation has been tried, including Rhode Island, New Jersey and Illinois," Goldberg explains. "These progressive states recognized that if local governments could target businesses in these ways, any company could be subject to unlimited liability regardless of its degree of culpability. The New Jersey Supreme Court explained that a company cannot be liable for 'merely offering an everyday household product for sale.' And, the Rhode Island Supreme Court said that such liability violates 'basic fairness.' The progressive legal philosophy does not support unprincipled liability."