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ANALYSIS: The Public Nuisance Doctrine Is Having a Moment

Nov. 4, 2019, 11:04 AM

Sometimes, the solution to tomorrow’s problems involves the novel application of long-standing legal theories. The public nuisance doctrine has been around for centuries, but it has recently come into the limelight as a way for municipal governments to address large-scale public health problems like the opioid epidemic.

A public nuisance theory was used successfully by the State of Oklahoma to recover money from Johnson & Johnson for its part in causing the state’s opioid crisis. The state sued a number of manufacturers, including Purdue Pharma and Teva Pharmaceutical Industries seeking $17 billion to help combat the effects of prescription painkillers. Purdue settled the matter for $270 million and Teva settled for $85 million. Johnson & Johnson decided to test the nuisance theory by taking the case to trial. After a bench trial, the judge awarded the state $572 million. Johnson & Johnson is expected to appeal the ruling. Track the status of opioid litigation with Bloomberg Law’s In Focus page.

The Oklahoma ruling may be the tip of the iceberg. Nuisance is also one of the theories that underlies the multidistrict opioid litigation in the United States District Court for the Northern District of Ohio, which consolidates more than 1,000 government cases against the manufacturers and distributors of prescription painkillers. The court has determined that a jury should decide whether defendants are liable for creating a public nuisance. Although discussions remain ongoing, Purdue Pharma, the manufacturer of OxyContin, has declared bankruptcy and offered a package it values at $10 billion to settle the claims.

The public nuisance theory previously was successful in the California lead paint cases. In 2000, ten California counties and cities brought a lawsuit against Sherwin Williams, ConAgra Grocery Products Co., NL Industries, and others seeking billions of dollars to remove old lead paint from homes. The municipalities argued that the companies had created a public health threat by marketing lead paint that they knew to be dangerous. After 14 years of litigation, a trial judge awarded a $1.15 billion dollar verdict on the claims. This amount was cut by more than half after an adverse ruling by an appeals court, and the parties agreed to a $305 million dollar settlement in July of 2019 after the U.S. Supreme Court refused to consider the matter.

These decisions are not without controversy. They present a significant shift from more traditional applications of the public nuisance doctrine, which are generally invoked when one person’s use of their property injured the public’s health, comfort, or morals. Typical examples include diverting water to benefit oneself at the expense of the public or operating a factory that spews pollution into the air.

Indeed, many previous attempts to use the nuisance doctrine to address broad, public ills have failed. For example, in 2004 the Illinois Supreme Court rejected the City of Chicago’s nuisance lawsuit against several gun manufacturers for contributing to the city’s epidemic of gun crime. Nevertheless, these high-profile victories will surely encourage other municipalities to give nuisance a try.

Some have already gotten started. In recent months, school districts in Kansas, New York, and Missouri have taken action against e-cigarette manufacturers arguing that the marketing of their products to children has created a public nuisance. On October 8, they were joined by New York City, which sued 22 e-cigarette manufacturers for marketing and selling products to city residents who were too young to purchase them. The city’s complaint alleges that e-cigarette use among high-schoolers nationwide surged by 78% between 2017 and 2018.

We expect to see more lawsuits seeking to dramatically expand the scope of legal liability by attempting to address complex social problems through the doctrine of public nuisance. Whether they succeed in 2020 remains to be seen.

Read about other trends our analysts are following as part of our Bloomberg Law 2020 series.