As we’ve discussed before, Bexis was involved in the ALI proceedings that produced Restatement (Third) of Torts: Liability for Economic Harm §8 comment g (2020), that disapproved of public nuisance claims against product manufacturers.
[T]he common law of public nuisance is an inapt vehicle for addressing the conduct at issue. Mass harms caused by dangerous products are better addressed through the law of products liability, which has been developed and refined with sensitivity to the various policies at stake.
Id. However, everything ALI does is persuasive, not binding, and not all courts choose to follow it, most notoriously the 2025 worst case of the year, City of Huntington v. AmerisourceBergen Drug Corp., 157 F.4th 547 (4th Cir. 2025).
But thanks to the Washington Legal Foundation, we’ve learned about a new Montana statute the fixed this problem, beyond the power of any wayward judge, by codifying the law of public nuisance to bar claims against the manufacturers of legal products (as well as prohibiting similar politicized claims). The statute, passed in 2025, defines what can be a public nuisance
(1) A public nuisance is:
(a) a condition arising out of the use of real property that unlawfully interferes with a public right by endangering communal safety, being indecent to the community, or being offensive to the community; or
(b) a condition that unlawfully interferes with the public right to free passage or use, in the customary manner, of a navigable lake, river, bay, stream, canal, or basin or a public park, square, street, road, or highway.
Mont. Code §27-30-101(a). That limits allowable public nuisance claims to their traditional scope − before the plaintiff lawyers started abusing mushy common law – injurious uses of land and interference with public means of transportation.
To make sure that there is no ambiguity, the statute also specifies what cannot be a public nuisance:
(2) The following nonexclusive list of actions or conditions may not be considered a public nuisance or be the basis for a public nuisance cause of action:
(a) an action or condition that is lawful;
(b) an action or condition that is authorized, approved, licensed, or mandated by statute, ordinance, regulation, permit, license, order, rule, or other similar measure issued, adopted, promulgated, or approved by a government entity. . . .
(e) the design, manufacturing, distributing, selling, labeling, or marketing of a product;
(f) the aggregation of individual injuries or private rights, including private nuisances. . . .
Id. at §27-30-101(b) (emphasis added).
This Montana statute should serve as a model in other states where plaintiffs have been allowed to hijack traditional public nuisance law in pursuit of novel and expansive industry-wide liability theories of liability.