The “Public Nuisance” Theory of Pharmaceutical Liability for the Opioids Crisis Is … a Public Nuisance

The jury in a federal court in Ohio has found three major pharmacy chains—CVS, Walmart, and Walgreens—liable for the opioids crisis in two plaintiff counties. In so doing, the jury embraced an outlandish theory of “public nuisance” that, if upheld, could have devastating consequences for the pharmaceutical industry and for health policy in the United States.

The decision, if appealed to the Sixth Circuit Court of Appeals and upheld there, could create a circuit split with several other circuits. In a case involving asbestos, the Eighth Circuit ruled in Tioga Public School District v. U.S. Gypsum Co., 984 F.2d 915 (Eighth Circuit 1993):

Under Tioga’s theory, any injury suffered in North Dakota would give rise to a cause of action under [its nuisance statute] regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.

Similarly, in a case involving the sale of handguns, the Seventh Circuit held in City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004

If there is a public right to be free from the threat that others may use a lawful product to break the law, that right would include the right to drive upon the highways, free from the risk of injury posed by drunk drivers. This public right to safe passage on the highways would provide the basis for public nuisance claims against brewers and distillers, distributing companies, and proprietors of bars, taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said to contribute to an interference with the public right.

The decision of the Ohio jury is also in sharp contrast with the recent ruling of the Oklahoma Supreme Court, which found no merit to the “public nuisance” theory in an almost identical case. As Law Professor Richard Epstein and I wrote in an amicus brief in the Oklahoma litigation:

As a result of the district court’s woefully elementary and flawed understanding of the public nuisance doctrine, states could divert a large part of the pharmaceutical sector’s revenue needed for product research and development into untested policy programs devised entirely by courts as policy-making bodies.

That ominous prospect, which raises a serious separation-of-powers problem, depends entirely upon a basic error in the district court’s understanding of the public nuisance doctrine. Far from its origins in common rights of the public to land and water, the district court’s rule is a misapplication of straightforward misrepresentation and products liability law, which if faithfully applied could succeed on the facts of the case.

The root difficulty is that the State of Oklahoma has morphed itself into a collective plaintiff that purports to act on behalf of all of its citizens in pursuing this public nuisance case. In fact, the state is a wholly inappropriate plaintiff in this instance because it is not suing for harms to its common property, or to any rights held by the public at large, as the law of public nuisance uniformly requires. Instead, it sues as a disguised guardian for all individuals who are fully capable of bringing tort actions on their own for any substantial injuries they suffered. The interposition of the state as a plaintiff has made it all too easy for the district court to lump together this large collection of diverse individuals into a single entity that somehow has suffered an ill-defined public harm for which enormous damages are awarded.

This false aggregation of individual claims, under the banner of the State of Oklahoma, has allowed the district court to cobble together a weird theory of public nuisance liability as though J&J through its sale and promotion of its products stands somehow responsible for all of these diffuse social harms. The public liability is imposed even for those losses suffered by parties who never consumed or used its products, let alone knew or relied on the representations that the defendants made at different times to different groups of injured parties, all of whom used different products. That form of collective liability is also wholly at odds with the entire Anglo-American tradition of vicarious tort liability that holds individuals and firms responsible for the discrete harms that they have caused, and not for global harms that were caused by unrelated parties.

Professor Epstein and I explained the origins of the “public nuisance” doctrine and how it is being misused to short-circuit the legal requirements for traditional torts claims in these cases:

The origin of this requirement of public rights in addition to any private rights dates back to the 1536 British case of Anonymous before the Court of King’s Bench, Y.B. 27, Hen. 8, f. 27, pl.10 (1536) (reprinted in Richard A. Epstein and Catherine M. Sharkey, Cases and Materials on Torts 637 (12th ed. 2020)). The defendant had blocked plaintiff’s access to the King’s Highway—open to all for transportation—so that the no passerby could reach his destination. The Chief Justice recognized that it would be impractical to extend a private right of action to every person so harmed, as, “if one person shall have an action for this, by the same reason every person shall have an action, and so [the defendant] will be punished a hundred times on the same case.” Id. On the other hand, Judge Fitzherbert concluded that the plaintiff could recover damages if he “suffered greater damage than all others,” for instance because he “had more convenience by this highway than any other person.” Id. Absent a showing of such “special damages,” the defendant’s actions would be “punishable in the Leet,” meaning through fines imposed by an administrative body. Id. In other words, absent a claim to special damages, diffuse harms were appropriately redressed through regulatory action, either fines or repairs, a systematic solution that remains good law today. [. . .]

The definition of a public nuisance must be contrasted with a private nuisance which also involves “a non-trespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts, § 822. The nontrespassory activities that constitute a private nuisance include emissions of pollutants that cross property lines, as well as noises, vibrations and any other conduct that results in a disturbance of the rights of quiet enjoyment that attach to real property. See, Morgan v. High Penn Oil, 77 S.E. 2d 682, 689 (N.C. 1953) (“[A]ny substantial non-trespassory invasion of another’s interest in the private use and enjoyment of land by any type of liability forming conduct is a private nuisance.”)

It is clear from these definitions that the interests in lands, air or water protected by the law of nuisance are identical for both private and public nuisance. Neither head of nuisance has ever covered financial losses or personal injuries resulting from the individual ingestion of particular products that they have acquired either in market or informal transactions of the sort claimed here. Those claims require individual suits brought by the parties afflicted against the parties who have caused the harm in question.

The district court decision struck down in Oklahoma would have required a couple of pharmaceutical companies to foot the bill for the entirety of the opioid crisis in that state, including treatment programs for illicit heroin and fentanyl use to which the companies had no connection whatsoever. If carried nationwide, such verdicts would have devastating impacts on the resources for research and development of new medicines. That would be a real public nuisance—and a deadly one.