As the opioid crisis wages on and overdose deaths soar to record
highs, communities across the nation struggle to address the devastating
impacts. Meanwhile, tribal, state, and local governments have filed
thousands of lawsuits that seek to hold pharmaceutical companies liable for
funding programs to abate the crisis. Among other claims, the plaintiffs
allege that the opioid industry—manufacturers, distributors, and
pharmacies—caused a public nuisance through the oversupply of
prescription opioids. These claims are a novel application of public nuisance
law.
Between November 2021 and August 2022, the protracted opioid
lawsuits finally delivered five decisions. The public nuisance claims
achieved mixed results. Courts in Oklahoma and West Virginia rejected the
claims as a matter of law. In a state court in California, the plaintiffs failed
to meet their burden of proof. But federal courts in California and Ohio
found the opioid industry defendants liable under public nuisance law. What
accounts for these varied and conflicting outcomes?
To answer that question, this Comment conducts an in-depth analysis
of the recent decisions to define the contours of this emerging area of law.
Five factors are most predictive of a viable public nuisance claim in opioid
litigation: (1) a defendant’s role in the opioid supply chain; (2) the
jurisdiction’s standard of causation; (3) a defendant’s compliance—or
non-compliance—with laws and regulations; (4) precedent from prior public
nuisance claims against gun and lead paint manufacturers; and (5) the
jurisdiction’s approach to abatement as a remedy. These five factors serve
to identify a viable theory of public nuisance liability in opioid litigation, as
well as the reasons why a public nuisance claim may fail as a matter of fact
or law.
