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.” 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. 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, 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.
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. 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.”
Later, 46 states sued tobacco manufacturers using a public nuisance theory and settled those cases. Plaintiffs then sued gun manufacturers to recover the costs of gun crimes, alleging that defendants were selling firearms when they knew or should have known that the firearms would be possessed or used illegally. Plaintiffs essentially argued that gun manufacturers should have been more aware of weapons regulations state-to-state to ensure that their customers were purchasing guns in compliance with local laws. Like the asbestos suits, the vast majority of these suits failed because defendants did not have control over the guns—either because third parties illegally resold the weapons or the shooter acted criminally—and because courts held that the right to be free from unreasonable jeopardy to health is not a public right.
Fast forward to the new millennium, when governments filed public nuisance suits against lead paint manufacturers in New Jersey, Missouri, Rhode Island, Illinois, and California. These cases—except for a California Court of Appeal—held that public nuisance law is not the proper avenue for vindicating mass tort actions. The New Jersey Supreme Court cautioned that allowing these claims to proceed would “stretch the concept of public nuisance far beyond recognition and . . . create a new and entirely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.”
The Rhode Island Supreme Court held that plaintiffs had failed to identify a public right, stating that for something to be a public right, the possibility of injury must be to the public generally—like interference with an indivisible resource like air or water. Like the Illinois Supreme Court in Beretta U.S.A. Corp., the Rhode Island Supreme Court found that the right not to be poisoned by lead in private homes was a private right because lead did not have the potential to injure the public at large, reaffirming that a public right is more than just an aggregation of a large number of injured people’s private rights.
The California Court of Appeal, on the other hand, held that plaintiffs had satisfied all elements of a public nuisance claim in their lead-based paint action. The court held that, by actively promoting lead-based paints for interior use, defendants’ actions were a “substantial factor in bringing about” the alleged injuries, which demonstrated causation. The court also found that the collective social interest in the safety of children in private homes is a public right, and by promoting lead-based paints, defendants interfered with that public right.
Although history would suggest that plaintiffs ultimately will not succeed in their public nuisance actions against opioid manufacturers and distributors, several trial courts recently have ruled in favor of plaintiffs. In October 2019, four pharmaceutical companies settled for $260 million dollars in the Ohio MDL. One month later, an Oklahoma trial court entered a $465 million dollar judgment against opioid manufacturer Johnson & Johnson on a public nuisance theory of liability. And most recently, in January 2020, the MDL judge denied the distributor defendants’ motion for summary judgment, finding that the plaintiffs had set forth evidence that the distributor defendants’ monitoring systems were not reliable. Johnson & Johnson has already announced its intention to appeal the Oklahoma court’s ruling.
To learn more about this issue, stay tuned for our second post, which will analyze the challenges that public nuisance law presents for the current opioid litigation.
 Restatement (Second) of Torts § 821B (1979).
 State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 455 (R.I. 2008); People v. ConAgra Grocery Prod. Co., 17 Cal. App. 5th 51, 109 (2017).
 In re Nat’l Prescription Opiate Litig., No. 1:17-MD-02804, 2019 WL 2468267, at *30-32 (N.D. Ohio Apr. 1, 2019), report and recommendation adopted in part, rejected in part, No. 1:17-MD-2804, 2019 WL 3737023 (N.D. Ohio June 13, 2019).
 City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1114-15 (Ill. 2004).
 See, e.g., City of Manchester v. Nat’l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986); Warren Consol. Schs. v. W.R. Grace & Co., 518 N.W.2d 508, 511 (Mich. Ct. App. 1994)
 Tioga Pub. Sch. Dist. No. 15 v. U.S. Gypsum Co., 984 F.2d 915, 920-22 (8th Cir. 1993).
 Beretta U.S.A. Corp., 821 N.E.2d at 1107-08.
 In re Lead Paint Litig., 924 A.2d 484, 494 (N.J. 2007)
 Lead Indus. Ass’n, 951 A.2d at 447-48.
 ConAgra Grocery Prods., 17 Cal. App. 5th at 163-64.
 Id. at 101-02, 104.
 Id. at 111-12.