Oklahoma Supreme Court reverses judgment against opioid manufacturers in public nuisance case; but lower court in Ohio finds against pharmacies

About three weeks ago, (on November 7) I posted a story about a decision in California dismissing a claim for public nuisance against several opioid manufacturers and distributors.  Two days after that, the Supreme Court of Oklahoma announced a decision reversing a trial court's judgment against opioid manufacturers in a similar case.  The case is State ex rel. Hunter v. Johnson and Johnson and you can find it here.

These two decisions resulted in an article in the NY Times with the very descriptive title "The Core Legal Strategy Against Opioid Companies May Be Faltering."  You can read it here.

Yet, a couple of weeks later a jury in Ohio found that three retail pharmacy chains created a public nuisance by recklessly distributing vast amounts of pain pills in two Ohio counties.  See here.  I have no doubt this verdict will be appealed. 

Evidently, the litigation over the opioid crisis is a big deal.  There are thousands of pending cases and how each is decided ultimately will influence how the issue is addressed in other jurisdictions.  

If we go by history, the use of public nuisance as a way to address social problems created by distribution of products has not been successful.  The vast majority of cases that attempted it failed, including cases against tobacco companies, lead paint manufacturers and gun manufacturers and distributors.  For this reason, the cases against opioid manufacturers are going to be difficult to win.  But it is possible courts will change their view on this.  I am very interested in following this story which will not go away any time soon.

Here is a short PBS News report that summarizes many of the issues involved in the current litigation.  (While you are at it, if you are interested, you can find many other videos on the topic of the opioid crisis on YouTube.)

More coverage on the verdict against the pharmacy chains here:  AboutLawsuits.com, ABA Journal, NPR, The Guardian, and Courthouse News.

Judge recently issued a "tentative decision" against the plaintiffs in California case related to opioid crisis

If you have been watching "Dopesick" on Hulu or "Goliath" on Amazon Primes, you might be disappointed to hear that this week a judge in California issued a "tentative decision" holding that a lawsuit seeking to hold drug companies liable for the opioid crisis must fail because the plaintiffs didn’t show that false and misleading marketing caused an increase in medically inappropriate prescriptions.  The defendants included Johnson & Johnson, Teva Pharmaceutical Industries, Endo International and AbbVie Inc.’s Allergan unit.

More than 3,300 lawsuits have been filed by state and local governments over the opioid crisis. In the only other case that went to trial, an Oklahoma judge found Johnson & Johnson liable for $465 million. 

The ABA Journal has the full story here.  Reuters has more here, and NPR's coverage is here.

Article on the use of public nuisance claims as product liability cases

Back in 2010 I posted a link to an article on the tort of "public nuisance" that stated:

The National Law Journal has published a short article on the tort of "public nuisance" interestingly called "The tort that refuses to die." Here is the first paragraph: "The tort of public nuisance has seen its fortunes rise and fall dramatically during the past several years. It was once hailed by the legal literati as the next big tort. More than one court described it as a monster threatening to devour tort law because of its propensity for reaching conduct that other tort theories could not. . . . Recent events confirm that analogy to a degree. Public nuisance resembles nothing so much as a zombie — a mindless creature perhaps not particularly dangerous at first glance but incredibly difficult to kill once and for all." The authors then discuss how the recent reversal of a case against former lead paint manufacturers alleging that lead paint was a public nuisance in Rhode Island, suggested public nuisance would not be an effective legal theory. But there have been many other cases that have challenged this conclusion. The article can be found here ..."

 I am bringing this up again today because I just read a new short article discussing the use of public nuisance claims related to opioid products, which starts as follows:  "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."

The article is titled Trending in Tort Law: Transforming Product Liability Claims into Public Nuisance Actions and you can read it here.

Damages caused by water pollution in California?

As published in Pharmalot.... "To what extent did a Merck subsidiary pollute groundwater and soil in Beachwood, Ca.? Why was potentially damaging language about a clean-up plan written by a Merck consultant not included in a final draft sent to local authorities? And were residents actually harmed? These questions lie at the heart of a federal lawsuit that alleges Merck’s Baltimore Aircoil unit polluted a neighborhood for years with Chromium 6, a carcinogen linked to cancer and birth defects, causing sickness and death (this is the same pollutant that Erin Brockovich made famous)." To continue reading this story go here.

Public Nuisance

The National Law Journal has published a short article on the tort of "public nuisance" interestingly called "The tort that refuses to die." Here is the first paragraph: "The tort of public nuisance has seen its fortunes rise and fall dramatically during the past several years. It was once hailed by the legal literati as the next big tort. More than one court described it as a monster threatening to devour tort law because of its propensity for reaching conduct that other tort theories could not. . . . Recent events confirm that analogy to a degree. Public nuisance resembles nothing so much as a zombie — a mindless creature perhaps not particularly dangerous at first glance but incredibly difficult to kill once and for all." The authors then discuss how the recent reversal of a case against former lead paint manufacturers alleging that lead paint was a public nuisance in Rhode Island, suggested public nuisance would not be an effective legal theory. But there have been many other cases that have challenged this conclusion. The article can be found here (although I am not sure if the link works if you don't have a subscription to the NLJ. If it doesn't, you may have to wait for the print version or search for it on Westlaw).

Supreme Court Turns Down New York City Case Against Gun Industry

Law.com reports today that the Supreme Court has turned away pleas by New York City and gun violence victims to hold the firearms industry responsible for selling guns that could end up in illegal markets. Federal appeals courts in New York and Washington stayed the claims after Congress passed a law in 2005 giving the gun industry broad immunity against such lawsuits. The city had argued that a state nuisance law makes it a crime to knowingly or recklessly create a condition endangering the safety or health of a considerable number of people. But the appeals court said New York's law does not qualify as an exception to federal law. It agreed with U.S. District Judge Jack B. Weinstein that the Protection of Lawful Commerce in Arms Act, signed by President George W. Bush in 2005, is constitutional. The cases are City of New York v. Beretta and Lawson v. Beretta. For a comment on this case, go here.

Indiana Supreme Court allows nuisance claim vs gun manufacturers

Jonathan Turley reports today that, the Indiana Supreme Court has ruled that a lawsuit by the City of Gary against a gun manufacturer on a nuisance theory can proceed to trial. These lawsuits have been uniformly rejected on various grounds. Yet, Gary with one of the nation’s highest homicide rates will be allowed to sue companies like Smith and Wesson, Beretta and Colt as well as gun dealers for the harm caused by their products. Professor's Turley's comment (including links to a decision in Rhode Island which reached the opposite conclusion) is available here. The Court's opinion is available here.

California Court Revives Secondhand Smoke Case

Law.com reports that the California Court of Appeals has reversed the dismissal of an asthmatic 7-year-old girl's public nuisance suit against her family's apartment complex over secondhand smoke in outdoor common areas. The court ruled that the girl not only had standing to file suit as a tenant, but also that she has pleaded a cause of action sufficient to withstand a motion to dismiss. This may be the first time that a court has suggested that outdoor secondhand smoke can constitute a public and private nuisance. Law.com's article is available here.

Case vs 3M for groundwater contamination

The Minneapolis Star Tribune reports today on an interesting case involving the spread of a 3M Co. chemical through groundwater. Because there is no evidence that the plaintiffs have been physically harmed, Washington County Judge Mary Hannon blocked a claim by the residents that they had sustained health problems. However, because trace amounts of PFCs, used in the manufacture of nonstick cookware, stain-resistant carpets and fabrics and other products, have been found in public and private wells, the judge allowed the residents to seek punitive damages, against the company for negligence and trespass. Also pending is a claim that the pollutants have harmed the plaintiffs' property values. Thanks to William Childs of TortsProf Blog