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lem. These attorneys sued automobile manufacturers and asserted that their products were not “crashworthy” or were otherwise designed in an unsafe manner. In addition, a few public health experts began to see litigation against product manufacturers as yet another approach that the government could employ to address public health problems. Finally, the ongoing proliferation of claims against asbestos manufacturers yielded a small group of specialized mass plaintiffs’ attorneys who acquired both the medical and legal expertise and the resources to tackle sophisticated litigation against manufacturers of other mass products. Together, these developments paved the way for an entirely new and different form of litigation to address public health problems resulting from product exposure. As mentioned previously, parens patriae litigation against product manufacturers resulted in part from a perception shared among plaintiffs’ attorneys —as well as politically ambitious state attorneys general, public health of‹cials, and public interest advocates—that Congress, state legislatures , and administrative agencies had failed to adequately regulate products that caused disease or to address the public health consequences resulting from product use. I consider this assertion in chapter 5. It is not surprising that many lawyers and some judges, disparagingly referred to by business interests as “activist” judges, saw resort to the courts as the last best hope for public health. In the process, the principal objective of suing manufacturers of products that caused disease shifted from the compensation of victims to the regulation of the manufacturers’ products or other means of preventing harm caused by such products. States ‹rst began to sue tobacco manufacturers to seek damages caused by cancer and other illnesses in 1994. Rhode Island’s lawsuit against lead pigment manufacturers followed ‹ve years later, shortly after the tobacco litigation had settled. The success of this novel form of litigation required abrupt changes in the law governing both the standing of the state to sue as parens patriae and the principal substantive claim of public nuisance. The capacity of the state to sue as parens patriae—literally meaning as “parent of the country”—originated in the ability of the English Crown to legally represent the rights of persons unable to represent their own legal interests because of mental incapacity or age.8 By the early twentieth century, the U.S. Supreme Court had also recognized a state’s ability to sue as parens patriae to protect its citizens from collective wrongs, such as transboundary air or water pollution.9 Granting the state standing to sue manufacturers for the harms in›icted by mass consumer products dramatically expanded the scope of parens patriae standing beyond the traditional understanding of it in 4 suing the tobacco and lead pigment industries American law. In the product-focused version of parens patriae litigation, the state sues to collect damages it has sustained as a result of harms in›icted initially and more directly on its residents—for example, state medical assistance (Medicaid) funds already paid to the victims of tobacco -related disease for their medical expenses or the costs of abating lead-based paint hazards in tens or hundreds of thousands of private residences throughout the state. In short, the state becomes a “superplaintiff.” Instead of each individual victim suing manufacturers directly, the state sues on behalf of all victims and disburses the funds to individual citizens as Medicaid bene‹ts or lead-hazard remediation grants. In chapter 6, I analyze this new form of products litigation as it developed in lawsuits ‹led against tobacco and handgun manufacturers. This innovation within the legal system is one that would make alchemists proud, because in the process of the state assuming the right to collect damages for harms in›icted more directly on its residents, manufacturers somehow lose defenses that would have prevented their liability if they had been sued by the individual victims themselves. If the individual victim of lung cancer had sued, he would not have been able to recover, because the judge and jury would have found that he either knew about the health risks of smoking and therefore had “assumed the risks” or that the dangers of cigarette smoking were “common knowledge.” When the state sued to collect damages for the harms originally in›icted on individual victims , however, such defenses no longer applied. Don Barrett, a Mississippi attorney who may have been among the ‹rst to appreciate the advantages of the state proceeding as parens patriae, explained, “The State . . . never smoked a cigarette.”10 Similarly, when the lead-poisoned child and his parents sued in...

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