On December 12, 2007, the Lucas County Court of Common Pleas dismissed a public nuisance lead paint case brought by the City of Toledo against several former lead-paint companies, including Sherwin-Williams. In a lengthy and detailed opinion in City of Toledo v. Sherman Williams Company, the judge found:
- Plaintiff's public nuisance claim is subsumed and barred by Ohio's Product Liability Act. In reaching this decision, the court relied on S.B. 117, which clarified, among other things, that Ohio’s Product Liability Act has abrogated all common law product liability claims, including those characterized as public nuisance claims.
- Applying S.B. 117 "does not result in an inappropriate retroactive application" because the General Assembly unequivocally expressed (in uncodified law) that the amendment to R.C. 2307.71 was not substantive.
- Plaintiff's claims are barred by the applicable statute of limitations and the ten-year statute of repose applicable to products (enacted in S.B. 80).
- Even if the public nuisance claim was not time-barred, the claim still fails under Sutowski v. Eli Lily Company, 82 Ohio St.3d 347, which held that market share liability is not available in a products liability action in Ohio.
More information is available on Ohio S.B. 117, public nuisance lawsuits and lead paint ligitation.