.. Part II examines the origins of the current opioid epidemic and the litigation that has resulted from it. Part II identifies the various approaches to the issue of cause-in-fact, including the traditional ‘but for’ test, the Second Restatement’s substantial factor test and the Third Restatement’s necessary element of a sufficient set (NESS) test. It concludes that the court could have found Johnson & Johnson to be a cause in fact of the public nuisance under the second and third tests, but not the first test. Part III is concerned with specific causation or product identification. Although this is not likely to be an issue in opioid litigation, it will be considered because one approach to the specific causation, market share liability, will play an important role in the proposal relating to apportionment of damages.
Proximate cause is briefly discussed in Part IV. The article observes that while an opioid epidemic was certainly foreseeable by the year 2000, opioid producers continued to promote opioids and distribute excess amounts of opioid painkiller medicine for another two decades, a survey of handgun and other cases suggests that opioid producers might be able to claim that the actions of other actors, such as prescribing physicians, illegal drug dealers and patient abuse might break the chain of causation. Part V examines joint and several liability and apportionment of damages. It finds that defendants whose concurrent independent acts result in injury to a plaintiff are often held jointly and severally liable. Finally, Part VI concludes that joint and several liability is inappropriate in mass tort cases and argues that courts should apply some form of market share liability instead …
Richard C Ausness, Causation and Apportionment Issues in Opioid Litigation (2021) 49 Capital University Law Review (4) 535 (November 2021).
First posted 2021-11-09 16:00:17
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