Cleaning Up the Opioid Crisis: Emerging Public Nuisance Liability in Opioid Litigation

Abstract

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.