Bricks and Bridges: the Potential of Public Nuisance Law in Opioid Litigation

Mark Lanier in his closing statement of the landmark opioid litigation trial, Trumbull County v. Purdue Pharma L.P., pulled out a model bridge made of Legos. Lanier argued that one Lego could make the bridge topple down, attributing his anecdote to the many components of the opioid crisis: Though one misstep led to nationwide addiction, all are responsible in some way. Abuse of both prescription opiates and illicitly distributed pain medications has devastated American cities for decades and can be traced back to corporations marketing the “miracle drug” to vulnerable populations. The result of these corporations’ distribution and marketing of opioid products is still prevalent today, with opioid overdose deaths rising from 49,860 in 2019 to 81,806 in 2022. [1] Opioid litigation in recent years has attempted to remedy the loss and damage caused by the epidemic worsened by opioid corporations. By applying public nuisance law, a doctrine not typically used in medical litigation, and targeting the responsibility of specific parties within the opioid distribution chain, plaintiffs may be able to successfully abate billions of dollars in damage.

The American opioid epidemic can be traced back to the faults of opioid manufacturers, distributors, and retailers who comprise a complex chain of command, making it difficult to identify responsibility within the opioid epidemic. Manufacturers (such as Purdue Pharma) refer to corporations that produce, sell, and market opioid pills to other major distributors. Distributors (such as AmerisourceBergen Drug Corporation) send wholesale opioid orders to retailers. Retailers typically include smaller pharmacies, hospitals, and clinics. While companies can be both manufacturers and distributors, each entity has a specific role to play, especially within the context of opioid litigation.

            In recent years, litigation has sought to determine who is accountable for the opioid crisis, and the use of public nuisance is the only avenue through which companies can be held liable. Negligence is a claim that could be used in court to gain reparations from the companies that played a role in this epidemic. However, these claims generally require proof of individual harm, and an ability to show a direct link between the action or inaction and the harm caused. [2] Negligence claims are therefore difficult and time-consuming, as it can be hard to prove that one corporation was responsible for the overdose death of an individual. Therefore, public nuisance law has become more favorable in the plaintiffs’ arguments in opioid litigation.

In the Restatement of Law, which clarifies and restates common law in the United States, [3] public nuisance refers to “an unreasonable interference to the general public that include public health, safety, peace, comfort, or convenience; whether the conduct is proscribed by a statute, ordinance or administrative regulation; or whether it is of continuing nature and had produced a long-lasting, significant effect upon the public right.” [4] Each state has a slightly different interpretation of this law, but each consistently argues for abatement, which requires the defendant to remedy their harmful practices. [5] This concept of abatement has made public nuisance popular in opioid litigation, as plaintiffs can seek reparations for the known devastation the defendants have caused and the long-lasting damage that might carry over into the future. However, public nuisance claims haven’t been applied to the medical well-being of the public, leading to complex and misfired arguments.

            Ultimately, the opioid cases that first used public nuisance arguments were not successful because the interpretation of the law was limited by precedent. In 2021, Oklahoma v. Johnson & Johnson cited public nuisance law to claim that Johnson & Johnson’s false marketing exponentially increased state overdose deaths. Originally, the court ruled in favor of the plaintiff as this specific application of public nuisance would protect the physical well-being of the people. Still, shortly after, the Oklahoma Supreme Court overturned the decision, ruling that the plaintiff’s use of public nuisance did not align with precedent. [6] In Oklahoma, public nuisance claims had to prove harm to the land (such as street obstruction, stagnant water, and weeds that could foster a diseased environment), not just the people. [7] This failed case was due to the court’s strict interpretation of public nuisance. Monetary reparations were not achieved and public nuisance was limited in its potential.

Another case, Huntington v. AmerisourceBergen Drug Corp. (2017), failed due to public nuisance precedent, the attribution of responsibility to the wrong entity within the distribution chain, and its flawed usage of abatement. In this case, Huntington claimed that the distributors had shipped over eighty-one million opioid pills to a county that had a population of less than one hundred thousand people over eight years, causing a public nuisance. The plaintiff argued that AmerisourceBergen failed to flag the excessive orders to signal that the pills were being used illicitly, thereby violating the Controlled Substances Act implemented by the Drug Enforcement Administration. [8] The court ruled against the plaintiff, arguing that West Virginia's public nuisance law does not extend to the “sale, distribution, and manufacture of opioids” as it would be “inconsistent with the history and traditional notions of nuisance.” [9] Additionally, the compensation plan was not considered to be an abatement by the court, because it did not restrict the defendant’s misconduct and illegal methods of opioid distribution. [10] The plaintiff couldn’t prove that the manufacturer had directly caused opioids to be used illicitly, and the abatement plan was a wrongly misguided attempt that did not support the claim of remedying public nuisance at the source. In addition to this strict interpretation of public nuisance that offered little leeway for medical litigation cases, this passive role claimed by manufacturers—one where they argue that they simply fulfilled orders from other retailers—aided in the defendant’s success. Had the plaintiff argued against the specific and outlined responsibilities of the manufacturer instead of distribution, public nuisance law would have successfully aided West Virginia’s opioid crisis.

Because of the limited leniency in the interpretation of public nuisance claims concerning the well-being of the people, plaintiffs correctly shifted to focus on the specific responsibilities of the entities in the opioid distribution chain, specifically the distributors. In Trumbull County, the court found distributors Walgreens Boot Alliance, Inc., CVS Pharmacy, Inc., and Walmart Inc. guilty of worsening the opioid epidemic in Ohio’s Trumbull counties. The courts determined that the defendants engaged in conduct that led to oversupply and illicit diversion of opioids into illegal markets, creating reasonable interference with public rights. [11] The plaintiff used public nuisance in a way unlike previous opioid litigation and argued that nuisance was created from their distribution practices rather than the product itself. Previous opioid litigation argued against the company as a whole, but with the plaintiff arguing against specific distribution practices, the defendants couldn’t claim a more passive role.

The defendant also tried to argue that this claim fell under the Ohio Product Liability Act (OPLA), an Ohio law that allows claimants to seek compensation for harm caused by defective products which includes “design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing.” [12] OPLA claims involve two components that make them distinct from public nuisance claims: a product and compensation. However, monetary compensation makes the claim obsolete because the plaintiffs would have to prove that a defect in the product itself led to damage, which is not the responsibility of the distributor. [13] The defendants attempted to argue that the plaintiffs’ public nuisance claim was actually an OPLA claim, so with the plaintiffs seeking compensation, Trumbull’s argument was abrogated. However, Trumbull County made it clear they were arguing against their distribution practices and that they were seeking abatement rather than compensation. Therefore, because the plaintiffs focused their argument on Purdue’s distribution practices and abatement specifically, it fit the framework for their successful public nuisance claim.

After this breakthrough in opioid litigation, more cases began to emerge using a similar tactic of arguing against one component of the opioid distribution chain, gradually tacking the responsibility of the opioid epidemic onto multiple roles. In 2017, the cases of ​​County of Suffolk v. Purdue Pharma LP, County of Nassau v. Purdue Pharma LP, and State of New York v. Purdue Pharma LP argued against multiple defendants, including Teva Pharmaceuticals. While most settled outside of the court, Teva went to trial. The plaintiffs built off of the argument in Trumbull to accuse Teva of creating a public nuisance by downplaying the drugs’ addiction risk, marketing opioids for unapproved uses, and failing to report “flags” in the system that are intended to prevent drug oversupply and subsequent diversion into illegal markets. [14] Teva is a major manufacturer of opioids, but by focusing the public nuisance arguments on their deceptive marketing strategies and ignorance of ordering system safeguards, the plaintiff argued they created a public nuisance. Their claim was centered around wrongful distribution practices and marketing, which created an unreasonable interference with the public’s well-being. While opioid manufacturer AmerisourceBergen claimed that they played a passive role (simply fulfilling prescription orders under the Controlled Substances Act), Teva’s direct interaction with the public fit the framework of public nuisance law, leading to the plaintiff’s success. Because this case was built upon Trumbull, this settlement allowed more responsibility to be shifted onto other entities of the distribution chain. This was the first successful opioid case against a major pharmaceutical manufacturer because the plaintiffs expanded the potential of public nuisance law.

            With this new application of public nuisance, the future of opioid litigation and reparations for broken communities can be attained, one “brick” at a time. In previous litigation, public nuisance arguments were misfired against manufacturers who didn’t have a direct role in marketing, allowing them to take a passive role in the opioid epidemic. By focusing attention on distributors and their practices or manufacturers and their deceptive marketing techniques, public nuisance can be used more effectively to achieve abatement from corporations and aid communities devastated by opioid addiction.

Edited by Tal Dimenstein 

[1] “Drug Overdose Deaths: Facts and Figures.” National Institutes of Health, September 30, 2024. https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates.

[2] “Nuisance.” Legal Information Institute. Accessed November 16, 2024. https://www.law.cornell.edu/wex/nuisance.

[3] “Restatement of the Law.” Legal Information Institute. Accessed November 17, 2024. https://www.law.cornell.edu/wex/restatement_of_the_law.

[4] “§ 130.02 Public Nuisance Prohibition.” American Legal Publishing. Accessed November 17, 2024. https://codelibrary.amlegal.com/codes/newwhiteland/latest/newwhiteland_in/0-0-0-1024.

[5] “D.C. Law 24-315. Opioid Litigation Proceeds Amendment Act of 2022.” D.C. Law Library. Accessed November 17, 2024. https://code.dccouncil.gov/us/dc/council/laws/24-315.

[6] Oklahoma v. Johnson & Johnson, 54 P.3d 1, 4 (Okla. 2021).

[7] Johnson & Johnson, 54 P.3d at 5.

[8] United States v. AmerisourceBergen Corp., Civil Action 22-5209 (E.D. Pa. Nov. 6, 2023).

[9] The City of Huntington v. Amerisourcebergen Drug Corp., 609 F. Supp. 3d 408 (S.D.W. Va.).

[10] Amerisourcebergen Drug Corp., 609 F. Supp. 3d 408.

[11] Trumbull County, OH v. Purdue Pharma, L.P., 22-3753, (6th Cir. 2022).

[12] “Section 2307.71: Product Liability Definitions.” Section 2307.71 - Ohio Revised Code | Ohio Laws. Accessed November 17, 2024. https://codes.ohio.gov/ohio-revised-code/section-2307.71.

[13] Purdue Pharma, L.P., 22-3753.

[14] Cnty. of Suffolk v. Purdue Pharma L.P., 2017 N.Y. Slip Op. 32948 (N.Y. Sup. Ct. 2017).