Goldberg and Zipursky, ‘Opioid Litigation and the Law of Public Nuisance: A Preliminary Assessment’

In recent years, states and cities have filed civil actions against manufacturers and distributors of prescription opioid medications seeking, among other things, reimbursement for the cost of treating individuals who suffer from addiction, overdoses, and related illnesses. In many respects, these suits have followed the pattern set by suits against tobacco companies, as well as gun and paint manufacturers. This Article focuses on one of the most striking similarities: the plaintiffs’ aggressive invocation of the law of public nuisance as a basis for liability.

The question we explore is whether the plaintiff-entities can rely on public nuisance as a ground for prevailing and recovering damages. We conclude, preliminarily, that these suits should fail because they do not fall within the concept of public nuisance as courts have deployed it, and because the admittedly grave problems they aim to address are of a very different kind than those which the law of public nuisance is well-suited to address. In arguing for these conclusions, we do not deny – as some scholars have – that public nuisance is a tort. Rather, we maintain, primarily, that the entities have not alleged the kind of interference with a right common to the public that is required for the commission of this tort. Of course, even if we are correct to conclude that the plaintiffs’ public nuisance claims fail, the opioid defendants might well face liability on other claims brought by these claimants, or on behalf of individuals who have suffered physical injury as a result of becoming addicted to opiate-based medications have tort claims against the manufacturers, prescribers, or retailers of those drugs.

While our analysis of public nuisance tort liability might strike some as ‘formalistic’ in a pejorative sense, we maintain that in-depth doctrinal analysis should not be mistaken for out-of-touch conceptualism. Part of what makes the common law valuable and adaptive is that it has some content and structure. If it did not, it would not qualify as law at all. Our contention is that, notwithstanding the breadth of the public nuisance tort, it is not capacious enough to absorb claims by cities and states seeking compensation for the concededly urgent harms associated with the opioid crisis. To burst the seams of the legal framework while pretending one has remained within it is to lose the institutional stability that renders tort law a form of law and that helps to sustain the authority of judge-fashioned bodies of law. Perhaps some courts will decide this is worth doing. Our point is that, in so far as they do, they probably are exceeding the bounds of ordinary common law reasoning, even on a capacious understanding of it.

Goldberg, John CP and Zipursky, Benjamin C, Opioid Litigation and the Law of Public Nuisance: A Preliminary Assessment (March 15, 2021). DePaul Law Review, volume 70, 2021.

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