On Nov. 23, 2021, a federal jury found that pharmacy operators Walgreens, Walmart and CVS contributed to the opioid epidemic in two Ohio counties. Following six days of deliberations, the jurors concluded the defendant companies promoted a destructive oversupply of pain pills into small, vulnerable communities. The plaintiffs, Lake County and Trumbull County, each sought damages exceeding $1 billion to mitigate the public health effects of the opioid epidemic.
Similar lawsuits have been filed by U.S. counties against opioid manufacturers and distributors across the country. At the core of these cases is a legal doctrine called “public nuisance.” To hold pharma companies liable for their alleged role in the opioid epidemic, the plaintiffs need to demonstrate the companies’ actions met the test for what constitutes a public nuisance.
Although public nuisance law varies depending on state law, the fundamental analysis is:
- Did the opioid distributors unreasonably interfere with rights that are held by the general public?
Let’s unpack this first question. Local governments contend their citizens generally hold rights to public health services and a certain degree of public safety. Opioid distributors “interfere” with those rights by releasing an excessive amount of addictive pain pills into their communities. The oversupply of opioids results in increased costs to public services in law enforcement and health care. Granting this premise, the next question is whether the opioid distributors’ conduct was “unreasonable.”
Whether a company’s conduct is unreasonable is not simply a matter of any one judge’s subjective opinion. Judges and juries must deliberate within this second test:
- An interference with public rights is unreasonable if:
- the conduct involves a significant interference with public health, safety, peace, comfort, or convenience; or
- the conduct is prohibited by some law, ordinance, or regulation; or
- the conduct is ongoing, or has produced a long-lasting effect, and the defendant understands the nature of this effect on public rights.
Local governments argue that opioid distributors understand the nature of their actions, i.e., that supplying excessive opioids to comparatively small populations will inevitably create addicts and promote a black market for illegal opioid consumption. Further, the defendants’ actions have produced long-lasting effects that put immense strain on government resources. Given these credible allegations, it would appear state and local governments could successfully prove the elements of public nuisance. However, many courts have seen fit to prohibit this liability theory entirely.
In recent weeks, opioid distributors have achieved dramatic wins defending against public nuisance theories. In a similar case against drug-maker Johnson & Johnson, the Oklahoma Supreme Court overturned a landmark 2019 ruling that would have required the corporation to pay $465 million to the State of Oklahoma. The Oklahoma Supreme Court reasoned that public nuisance law was not intended to regulate products, but, rather, traditionally utilized in the context of improper land use or environmental destruction. The Court concluded that holding pharma companies liable in this manner would open the door to “unlimited and unprincipled liability for product manufacturers.” Further, “public nuisance claims [were created] to address discrete, localized problems, not policy problems.”
In my view, the unprecedented nature of the ongoing opioid epidemic demands new legal precedent. We’ve seen companies pump millions of pills into communities with merely hundreds of residents, and the same communities are still reeling from the preventable effects of widespread addiction. Common law liability will incentivize powerful pharma companies to exceed regulatory standards and implement their own drug supply monitoring systems.