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Manufacturers are used to defending strict product liability actions when plaintiffs claim that their products are defective. But in the opioid litigation, plaintiffs have filed something else: more than 2,500 public nuisance cases so far.
Governmental entities across the country are filing suits alleging that opioid manufacturers deceptively marketed their legal, opioid-based pain medications to understate the medication’s addictive qualities and to overstate its effectiveness in treating pain. In addition, plaintiffs allege that opioid distributors failed to properly monitor how frequently the medication was prescribed and failed to stop filling prescription orders from known “pill mills.” The complaints claim that manufacturer defendants’ deceptive marketing schemes and distributor defendants’ failure to monitor led more people to become addicted to painkillers, which led to people turning to illegal opioids. The legal argument here is that the defendants’ actions in concert interfered with an alleged public right against unwarranted illness and addition. But is public nuisance law likely to be a successful avenue for prosecuting these types of mass tort claims? It has not been in the past.
This is the first of two posts that will address how plaintiffs have historically used public nuisance law to prosecute mass tort claims and how the plaintiffs in the current opioid litigation may fare.
Overview of Public Nuisance Law
In most states, a public nuisance is “an unreasonable interference with a right common to the general public.”[1] This definition is often broken down into four elements: (1) the defendant’s affirmative conduct caused (2) an unreasonable interference (3) with a right common to the general public (4) that is abatable.
Courts have interpreted these elements in different ways. For example, courts in Rhode Island and California have disagreed about when a public nuisance is abatable: the Rhode Island Supreme Court held that this element is satisfied only if the defendant had control over what caused the nuisance when the injury occurred, while the a California Court of Appeal held that the plaintiff need not prove this element at all.[2] And while the federal district court in Ohio handling the opioid multidistrict litigation (MDL) has held that the right to be free from unwarranted addiction is a public right,[3] the Supreme Court of Illinois held that the right to be “free from unreasonable jeopardy to health” is a private right and cannot be the basis of a public nuisance claim.[4]
Roots of Public Nuisance Law in Mass Tort Cases
Plaintiffs litigating mass tort cases have turned to public nuisance law over the past decades. In the 1980s and 1990s, plaintiffs unsuccessfully attempted to use it to hold asbestos manufacturers liable.[5] In one case, plaintiffs alleged that defendants created a nuisance by producing an asbestos-laced product that caused major health repercussions for a portion of the population. Plaintiffs argued that North Dakota nuisance law did not require defendants to have the asbestos-laced products within their control when the injury to the consumer occurred. Explicitly rejecting this theory, the Eighth Circuit held that North Dakota nuisance law required the defendant to have control over the product and found that defendant in the case before it did not have control over the asbestos-laced products because when the injury occurred, the products had already been distributed to consumers. The Eighth Circuit warned that broadening nuisance law to encompass these claims “would in effect totally rewrite” tort law, morphing nuisance law into “a monster that would devour in one gulp the entire law of tort.”[6]
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