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.

Federal court rules that parents of a third grader who committed suicide have a cause of action against school board and school principal

 In a case that has a number of interesting implications the Court of Appeals for the Sixth Circuit has affirmed the denial of a motion to dismiss in a case involving the suicide of a young boy due to bullying in school.

The case involves a third grader who committed suicide after allegedly being the victim of multiple bullying incidents over a couple of years.  According to the complaint, school officials either downplayed the severity of incidents or flat out refused to notify them. Also, despite surveillance footage of the most recent incident, the school's principal and vice principal misrepresented the nature of Taye’s injuries to the boys parents.  

The parents sued the school board, and the principal and vice principal in their personal capacities.  The defendants filed a motion to dismiss which was denied by the lower court, and the Court of Appeals affirmed.

The case is interesting for a number of reasons.  First, there is the question of whether state immunity should protect the defendants.  

Second, there is the question of proximate cause.  Most often courts find that suicide is an unforeseeable intervening cause that severs the chain of causation preventing plaintiffs from supporting proximate cause.  However, in this case the court found that the boy’s suicide was plainly foreseeable, especially considering the school’s guidelines on bullying include suicide as a risk.

As I am sure you remember the prevailing test for proximate cause is to ask whether the injury is a foreseeable consequence of the risk created by the negligent conduct.  If the school guidelines actually mention suicide as a risk, it will be very difficult for the defendants to say that it was an unforeseeable consequence.

The case is called Myers v. Cincinnati Board of Education and you can find a copy here.

For more information on the case you can read stories in Law & Crime, and Courthouse News.