Chapter 2 traces the historical development of mass tort litigation from the 1970s through the 1990s, documenting plaintiffs attorneys initial unsuccessful attempts in the 1990s to extend public nuisance theory to mass tort products and marketing litigation. During this initial foray into public nuisance theory, courts instead universally defaulted to a narrow view of nuisance grounded in property law. In cases involving tobacoo, asbestos, lead paint, and gun litigation courts declined to accept plaintiffs public nusiance claims, refusing invitations to expand a claim for public nuisance beyond its grounding in real property concepts. Courts contended that these mass tort harms sounded in causes of action for traditional products liability, not public nuisance, and that public nuisance law had never been applied to products cases. Courts noted the deleterious effects of accepting an expanded concept of public nuisance, which would allow any plaintiff to describe a harm from a lawful product as producing a public nuisance. Such a concept would invite unlimited liability for manufacturers of legal products.

Chapter 3 explores the willingness of some state courts in the early 21st century to consider and approve plaintiffs assertion of public nuisance claims in developing mass tort litigation. This chapter involves a case study of the lead paint litigation, describing high incidences of childhood lead paint poisoning in older buildings as the basis for the lead paint lawsuits. These lawsuits attempted to hold the manufacturers and sellers of lead paint liable on a theory that the defendants created and maintained a public nuisance relating to lead paint. Many courts initially declined to allow plaintiffs to assert public nuisance claims in the lead paint litigation, based on various defenses sounding in lack of proximate caustaion, remoteness, and failure to satify the elements of a public nuisance claim. However, courts in Wisconsin and California subsequently accepted the plaintiffs pleading of a lead paint public nuisance claim, based on the defendants advertising and promotion of their products. These successful lead paint cases illustrated a conceptual breakthrough in judicial receptivity to communitywide public nusiance claims. However, other courts continued to reject lead paint public nuisance claims, illustrating the unsettled nature of public nuisance law.

In G.M.M. v. Kimpson, noted trial judge Jack Weinstein ruled that using plaintiff’s race or ethnicity to determine the amount of damages in a tort action violates the US Constitution. The case involved a young Hispanic boy who alleged that he suffered cognitive injuries because of exposure to lead paint in his apartment building. The court did not permit the defendant landlord to base its estimate of plaintiff’s likely future earnings on statistics for Hispanic males only, which would have resulted in a lower award than for a comparably injured white child. The rewritten feminist opinion builds on Judge Weinstein’s analysis but extends his reasoning to gender as well as race and ethnicity in order to capture bias against women of color whose injuries are located at the intersection of race, ethnicity, and gender. The feminist opinion describes how the common practice of using race-, ethnic-, and gender-based statistics cannot withstand either strict or intermediate scrutiny and must be replaced by blended tables that include the whole population. The accompanying commentary explains the history behind the use of race and gender-based tables and discusses the complications and tradeoffs of the various methods for remedying the violation.