Oklahoma’s ‘Painful’ Opioid Litigation Reversal May Spell Trouble for Big Pharma Settlements
Yvonne Theresa SparrowSmith | Dec. 15, 2022 | PDF Version (253 KB)
Preferred Citation: Yvonne Theresa SparrowSmith, Oklahoma’s ‘Painful’ Opioid Litigation Reversal May Spell Trouble for Big Pharma Settlements, 62 Washburn L.J. Online 4 (2022), https://washburnlaw.edu/wljonline/sparrowsmith-opioid.
I. Introduction
The devastating opioid epidemic has created a flood of litigation across the United States. In 2017, thousands of lawsuits surged at the state and federal levels, seeking to recover treatment and social costs associated with opioid addictions.[1] The litigation has been centralized in the federal court system as part of a Multiple District Litigation (“MDL”), transferring over three thousand cases filed in state courts to the MDL.[2] These lawsuits generally allege that the defendants engaged in unlawful conduct by marketing and selling opioids, leading to widespread addiction and overdose deaths.[3] In 2021, five major U.S. trials kicked off testing allegations from state and local governments against drug makers, wholesale distributors, and major pharmacy chains.[4]
The Oklahoma Supreme Court’s reversal of State ex rel. Hunter v. Johnson & Johnson may change the balance in the rapidly evolving opioid litigation cases against Big Pharma.[5] The Oklahoma Supreme Court unanimously reversed the $465 million district court decision, refusing to allow product liability-based public nuisance under Oklahoma’s public nuisance statute for Johnson & Johnson’s (“J&J”) prescription opioid marketing campaign.[6] The Oklahoma Supreme Court held—however grave the opioid addiction epidemic is in the state—that public nuisance law does not remedy the alleged harms.[7]
This decision is important for three reasons. First, it departs from the approach taken by other courts in similar cases and sends a strong signal to defendants that global settlements may be premature.[8] Second, the ruling could make it harder for plaintiffs to bring public nuisance claims against drug companies in state courts. Third, the decision reinforces the importance of product liability law as the proper legal framework for addressing injuries caused by defective products and discourages plaintiffs from looking to public nuisance law as a workaround to statutory limitations on damages
II. Background
A. State ex rel. Hunter v. Johnson & Johnson
In 2017, the state of Oklahoma sued J&J and two other unaffiliated opioid manufacturers, alleging that defendants created a public nuisance by misrepresenting the risks of opioids, overstating the benefits of opioids, downplaying the seriousness of addiction, and using deceptive marketing practices.[9] The state based its theories on public nuisance and equitable recovery, not focusing on any individual consumer to prove illness causation.[10] The state’s theories also eliminated possible consumer defenses, like contributory negligence or assumption of risk.[11] The trial court found that J&J had created a public nuisance and ordered the company to pay $572 million to abate the nuisance.[12]
J&J appealed and the Oklahoma Supreme Court reversed the district court holding that the state did not prove that J&J’s conduct was a public nuisance under Oklahoma law.[13] The court refused to allow a product liability-based public nuisance argument under Oklahoma’s public nuisance statute because it explained that the state’s claims exceeded Oklahoma’s criteria for determining a nuisance.[14] The court also said that the state’s abatement of a public nuisance did not propose to limit J&J’s liability to injuries caused by J&J’s products because the abatement was not based on a percentage of opioids sold by J&J but on overall opioid sales.[15] In other words, there was a disconnect between J&J’s products, causation, and damages.[16]
The court explained that the supposed public nuisance could not be abated because “[t]he abatement is not the opioids themselves” or J&J’s marketing and promotion of the opioids.[17] Instead, the court said the ‘abatement’ was an award to the state to fund multiple government programs, and an Oklahoma court had “never allowed the State to collect a cash payment from a defendant that the district court line-item apportioned to address social, health, and criminal issues arising from conduct alleged to be a nuisance.”[18] In sum, if the state were allowed abatement as an award to finance government programs, it would have harmful consequences. The state could take money from companies it accuses of causing damage—like in this opioid litigation case—effectively allowing tort liability to usurp taxation’s role as a response to societal problems.[19]
B. Legal Background
1. Public Nuisance Law
The concept of public nuisance law began in England over two hundred years ago when public nuisance was recognized as a type of crime.[20] The concept of public nuisance is intended to let courts order defendants to stop specific behaviors that damage the public’s interest—like polluting a public river.[21] But the concept of public nuisance has expanded beyond its early origins as a property offense and is now being used to hold manufacturers responsible for any perceived injuries to the public from lawful products.[22] Public nuisance first gained traction as the go-to substantive claim in lawsuits filed by states and municipalities against companies for causing collective harm during the mass product liability litigation against Big Tobacco that resulted in the Master Settlement Agreement (“MSA”) in 1998.[23]
To serve as a collective litigant in product liability cases, the state attorney general must have the grounds to sue for broadly defined harms experienced by the state’s citizens.[24] In other words, the state acts for all its citizens who might have been hurt by a product rather than those who could sue individually.[25] This acting on behalf of citizens is called parens patriae standing, where the state argues that it may bring together claims from individual victims of product-caused harm and collect damages for harms experienced only at an individual level—not necessarily by the state itself.[26] “In short, the state becomes a ‘super plaintiff.’”[27]
Using the parens patriae doctrine to allege collective harm rather than individual harm means these claims do not require evidence that any specific manufacturer made the products that harmed any particular victim.[28] State attorneys general often expand the boundaries of common law using this doctrine to regulate an industry expressly.[29] This leaves manufacturers no choice but to agree with the regulatory scheme put in place through a consent decree like the MSA.[30] In the case of the opioid crises and subsequent litigation, federal regulators or state legislators created modest regulations.[31] But state attorneys general and a few plaintiffs’ firms specializing in mass products liability lawsuits used novel substantive claims such as public nuisance to usher in a new, harsher regulatory scheme like that used in the Big Tobacco litigation of the 1990s.[32] “The recent filings of claims against product manufacturers, however, are far more than the mere filing of lawsuits.”[33] Even more, under the MDL, the state uses public nuisance and other equitable recovery theories to prove illness causation without focusing on individual consumers.[34] These theories also eliminate possible defenses based on the consumers’ conduct, like contributory negligence or assumption of risk.[35]
2. Opioid Epidemic and Litigation
The U.S. opioid epidemic began in the 1990s when pharmaceutical companies started aggressively marketing opioids for pain relief.[36] Over the past two decades, the number of prescriptions for opioids quadrupled, and the number of overdose deaths rose correspondingly.[37] In 2020, over 91,000 overdose deaths occurred from opioids in the United States alone.[38] The increase in opioid prescriptions and overdoses led to a wave of litigation against pharmacies, pharmaceutical companies, and pharmaceutical distributors.[39] Individuals and local and state governments have filed thousands of lawsuits alleging these defendants are responsible for the opioid epidemic because they negligently marketed and sold opioids, did not track prescriptions properly, and/or turned a blind eye to the illegal diversion of opioids.[40] Several cases have gone to trial with mixed results.[41] In current and rapidly evolving opioid litigation, localities are joining forces with their states’ governments to capture an entire supply chain—opioid manufacturers, distributors, and retailers—exponentially raising the number of claims and defenses.[42]
III. The Oklahoma Supreme Court’s Decision
Determining whether public nuisance laws can be applied requires a court to carefully analyze whether a legitimate public interest is at stake, justifying state intervention.[43] In Hunter, the Oklahoma Supreme Court unanimously reversed the $465 million district court decision, refusing to supplant existing liability limitations with the state’s novel public nuisance theory because “extending public nuisance law to the manufacturing, marketing, and selling of products . . . would allow consumers to ‘convert almost every products liability action into a [public] nuisance claim.’”[44] The court held that public nuisance law is ill-suited to resolve claims against product manufacturers because “(1) the manufacture and distribution of products rarely cause a violation of a public right, (2) a manufacturer does not generally have control of its product once it is sold, and (3) a manufacturer could be held perpetually liable for its products under a nuisance theory.”[45] Thus, the state did not prove J&J violated a public right because generally, individual consumers buy and use products, even if the product causes widespread personal injuries, and sheer volume “does not transform the harm from individual injury into communal injury.”[46]
Further, a product manufacturer cannot control how a consumer uses or misuses a product after it is sold.[47] Without control, the manufacturer cannot remove or stop the nuisance.[48] The court also commented that many agencies and boards are responsible for enforcing the laws regulating the development, production, distribution, manufacturing, testing, labeling, advertising, prescribing, selling, possessing, and reselling of prescription opioids, and J&J had no control over its products because they changed hands multiple times.[49] For that reason, the court explained that while the case challenged them to reconsider long-held conceptions about liability and causation, it remained unconvinced that the state’s public nuisance theory was the correct framework.[50] Therefore, the court held that J&J bore no responsibility for the damages inflicted by the opioids it never manufactured, marketed, or sold.[51] Even more, the court explained that the state’s abatement plan does not remove the alleged nuisance, nor can J&J eliminate the condition that caused the nuisance.[52] Finally, the court emphasized that while the opioid epidemic is a societal problem, it cannot be remedied by introducing public nuisance theories of liability for product manufacturers.[53]
IV. Commentary
The Oklahoma Supreme Court correctly held that the district court’s interpretation of public nuisance law went too far. The problem with using public nuisance law to target product manufacturers is that it creates broad and limitless liability. As the court explained, applying nuisance statutes to the manufacturing, marketing, and selling of lawful products would extend the reach of public nuisance laws, which would open the floodgates, allowing plaintiffs to bring unlimited and unprincipled product liability claims to almost every product liability action.[54]
It remains to be seen how these developments will affect ongoing opioid litigation. The landscape of these cases has changed significantly in recent months, even during the writing of this Comment. The Food and Drug Administration (“FDA”) and the Drug Enforcement Administration (“DEA”) chiefly regulate the U.S. legal prescription drug industry.[55] Like the manufacturing, marketing, and selling of lawful products, pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat patients in need.[56] Yet, a California federal court recently held Walgreens liable for opioid abuse that permeated San Francisco.[57] Similarly, an Ohio district court recently upheld a jury’s findings holding three major pharmacy chains liable for damages on the theory that filling pill mill prescriptions[58] for opioids created a public nuisance.[59]
These decisions illustrate the risks to Big Pharma created by the opioid epidemic, causing a surge of large settlements from some of the largest drug manufacturers because the state has much more bargaining power in a lawsuit than any one person.[60] There is intense pressure to settle aggregate litigation claims when a single jury holds the fate of an industry in its hands.[61] Public nuisance law amplifies this pressure when the product has caused extensive health problems for millions of people.[62] In December 2020, the U.S. Department of Justice announced that it had reached a $480 billion settlement with Purdue Pharma, the maker of OxyContin.[63]
Recently, there have been reports that drug companies, distributors, and pharmacies involved in opioid litigation are discussing the possibility of a global settlement.[64] The financial stakes carry immense importance for funding addiction programs, and parens patriae sovereignty means nothing keeps state attorneys general from misusing opioid recovery money the way they misused their Big Tobacco cash.[65] Like the Big Tobacco litigation, opioid trials are massive, with the potential for multibillion-dollar verdicts. That said, the Oklahoma Supreme Court’s decision in Hunter could signify that the global settlements proposed in many opioid cases are premature because the ruling may give drug companies more ammunition to argue that these cases should be dismissed. Using public nuisance law in mass opioid litigation is questionable because applying public nuisance law to product manufacturers is dubious at best. Several state courts have held that public nuisance law does not apply to products lawfully made and sold.[66] At the same time, it is unclear whether the decision in Hunter will make settlements less likely, or will simply be used as leverage by one side or the other in the negotiation process.
One potential alternative to using public nuisance laws to address the opioid epidemic is to create legislation designed to deal with the problem by allowing states and local governments to recover costs associated with treating and preventing opioid addiction. But legislative bodies must carefully craft legislation to avoid issues arising in public nuisance cases. For example, the legislation must be narrowly tailored to ensure it does not sweep too broadly or result in unjustified claims. It would also need to clarify what types of conduct would give rise to liability so defendants would know how to avoid liability.[67]
Unfortunately, increased regulation in the medical industry has driven many pain-treating physicians to prioritize avoiding penalties over providing care.[68] Desperate patients unable to get pain control from their physician often turn to drugs like heroin or fentanyl, which lead to self-medication and often tragic results.[69] The CDC’s advice on prescribing opioids was never intended to apply to cancer or end-of-life treatment.[70] Yet even people with a terminal prognosis and excruciating pain have not been immune to the ravages of the opioid crackdown.[71] A recent study of terminally ill patients dying of cancer revealed that the number and strength of opioid prescriptions decreased, especially those for long-acting opioids.[72] Many patients suffering from chronic pain end their lives to prevent further suffering.[73] Opioid litigation and the war on opioids have created substantial collateral damage by severely affecting many chronic pain patients who cannot obtain legitimately needed prescription pain relief and who, as a result, choose to end their lives.[74]
Creating new legislation to address the opioid epidemic would be complex. Still, it may be the best way to ensure that those responsible for the problem are held accountable and that states and local governments can recover the costs associated with treating and preventing opioid addiction.
V. Conclusion
The decision in Hunter will influence the rapidly evolving landscape of opioid litigation. Yet it remains to be seen how other courts will interpret and apply the decision and how it will affect pending cases. Public nuisance law is an indiscriminate legal tool that should not be used to target lawful activities or product manufacturers. This new wave of regulatory litigation is problematic because it requires a questionable expansion of states’ parens patriae power[75] and dubious use of longstanding torts such as public nuisance.[76] Courts should use the intertwined concepts of justiciability and separation of powers to assess the legitimacy of this new wave of regulatory litigation. Manufacturers have no choice but to agree with the regulatory scheme put in place through a consent decree.[77] The doctrine of public nuisance is so vague and poorly understood that it is hard to know what is and is not a public nuisance.
Using parens patriae power and public nuisance litigation to reform public policy and institute social change through judicial action is problematic.[78] Because of the misuse of settlement funds post-Big Tobacco, there is significant doubt about whether opioid litigation by states met the goals of tort law or if it was a “big money grab” by governmental entities.[79] In addition, the increasing number of medical regulations has caused many pain-treating physicians to focus on avoiding penalties rather than providing care. Many desperate patients self-medicate when they cannot get relief from their physicians. This often leads to tragic results when they turn to drugs like heroin or fentanyl.[80] And sadly, many patients suffering from chronic pain often end their lives because they cannot bear the thought of living with the pain any longer.
Using public nuisance theories of liability hoping to remedy the societal problem of the opioid epidemic will create broad and unprincipled liability and will not alleviate the collateral damage that leaves chronic pain patients without relief. It is better to focus on specific illegal actions that damage the public interest, leaving public nuisance law to be used as it was originally intended—to target unlawful conduct that harms the public—and leaving the regulating to Congress, state legislatures, and administrative agencies.
[1]. Jeff Overley & Ben Jay, Mapping the Top Trials to Know in the Opioid Litigation Wave, Law360 (Apr. 12, 2022, 9:52 PM), https://www.law360.com/articles/1477869 [https://perma.cc/5SBD-56ZR]. [Return to text]
[2]. See Ben Brewer, States, Cities Eye $26 Billion Deal: Opioid Litigation Explained, Bloomberg L. (July 26, 2021, 4:31 AM), https://news.bloomberglaw.com/health-law-and-business/states-cities-eye-26-billion-deal-opioid-litigation-explained [https://perma.cc/KVS6-F9UE]; Wen W. Shen, Cong. Rsch. Serv., LSB10365, Overview of the Opioid Litigation and Related Settle-ments and Settlement Proposals 2 (Nov. 25, 2019). [Return to text]
[3]. See generally Peter C. Condron, Montey Cooper & Jessica Gilbert, Are Opioids a Public Nuisance? It Depends on Whom You Ask, 51 The Brief, no. 4, Summer 2022; Nate Raymond, Pharmacy Chains Including CVS Helped Fuel Opioid Epidemic, U.S. Jury Finds, Reuters (Nov. 23, 2021, 8:56 PM), https://www.reuters.com/legal/litigation/cvs-other-pharmacy-chains-found-liable-their-first-trial-over-us-opioid-epidemic-2021-11-23/ [https://perma.cc/LN6V-6H74]. [Return to text]
[4]. See Overley, supra note 1. Opioid litigation has proliferated in state courts, as well as in local courts in D.C., Puerto Rico, and Guam. The causes of action asserted in these various litigations include: (1) violations of state false claims acts; (2) violations of state consumer protection laws; (3) public nuisance; (4) fraud; (5) negligence; (6) unjust enrichment; (7) civil conspiracy; (8) violations of state controlled substances acts; (9) fraudulent transfer; (10) strict products liability; and (11) wrongful death and loss of consortium. See In Focus: Opioid Litigation & Regulation, Bloomberg L., https://www.bloomberglaw.com/product/health/page/infocus_opioid_litigation/ [https://perma.cc/SG4A-77MG] (last visited Jan. 21, 2023). [Return to text]
[5]. State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 720 (Okla. 2021). [Return to text]
[6]. Id. [Return to text]
[7]. Id. at 723. [Return to text]
[8]. Jan Hoffman, The Core Legal Strategy Against Opioid Companies May Be Faltering, N.Y. Times (Nov. 11, 2021), https://www.nytimes.com/2021/11/11/health/opioids-lawsuits-public-nuisance.html [https://perma.cc/3NRS-L2TT] (The potential impact of these rulings is uncertain. It is possible that they will derail the entire litigation, but it is also possible that they will have little impact beyond California and Oklahoma. Only time will tell.); Jan Hoffman, 15 States Reach a Deal with Purdue Pharma, Advancing a $4.5 Billion Opioids Settlement, N.Y. Times, https://www.nytimes.com/2021/07/08/health/purdue-pharma-opioids-settlement.html?action=click&module=RelatedLinks&pgtype=Article [https://perma.cc/7AWZ-2SUU] (last updated July 10, 2021) (The effect of the Purdue Pharma settlement on other opioid litigation is not yet clear, either. The agreement resolves only claims against Purdue and the Sackler family, but does not release any other defendants from liability. It is possible that the deal could set a precedent for other companies facing similar lawsuits, but it is also possible that other defendants will continue to fight their cases in court. It is yet to be determined how this settlement will affect the overall landscape of opioid litigation.). [Return to text]
[9]. Hunter, 499 P.3d at 722 n.11. During the litigation, the other two unaffiliated opioid manufacturers settled with the state for several hundred million dollars to avoid facing potential multi-billion-dollar liability. Id. After settling with the other two manufacturers, the State dismissed all claims against J&J except for public nuisance. Id. A thirty-three-day bench trial followed where the sole issue was whether J&J was responsible for creating a public nuisance in the marketing and selling of its opioid products. Id.; see also Jackie Fortier, Pain Meds as Public Nuisance? Oklahoma Tests a Legal Strategy for Opioid Addiction, NPR (July 16, 2019, 4:49 PM), https://www.npr.org/sections/health-shots/2019/07/16/741960008/pain-meds-as-public-nuisance-oklahoma-tests-a-legal-strategy-for-opioid-addictio [https://perma.cc/GG9Q-XKXH] (More than 1,600 local and tribal governments are suing both drug distributors and drugmakers who manufactured various kinds of opioid medications in order to recoup billions of dollars spent addressing the human costs of opioid addiction.). [Return to text]
[10]. Hunter, 499 P.3d at 725. [Return to text]
[11]. Id. [Return to text]
[12]. Id. at 722 n.11. [Return to text]
[13]. Id. at 747–48 (Edmondson, J., dissenting) (The single Justice who would have permitted nuisance recovery agreed that the court erred in not limiting recovery to injuries directly caused by J&J’s products.). [Return to text]
[14]. Id. [Return to text]
[15]. Id. at 729. [Return to text]
[16]. Id. [Return to text]
[17]. Id. [Return to text]
[18]. Id. [Return to text]
[19]. Id. [Return to text]
[20]. See Michelle L. Richards, Pills, Public Nuisance, and Parens Patriae: Questioning the Propriety of the Posture of the Opioid Litigation, 54 U. Rich. L. Rev. 405, 418 (2020). The King had authority to seek only injunction or abatement when making public nuisance claims to remedy actions and conditions that affected or “‘infringed on royal property or blocked public roads or waterways.’” Id. (quoting Joshua K. Payne & Jess R. Nix, U.S. Chamber Inst. for Legal Reform, Waking the Litigation Monster: The Misuse of Public Nuisance 3 (2019), https://instituteforlegalreform.com/wp-content/uploads/2020/10/The-Misuse-of-Public-Nuisance-Actions-2019-Research.pdf [https://perma.cc/PRE3-653E]). By the sixteenth century, private nuisance claims became common where individuals could seek injunctive relief for “‘special’” injuries. Id. (quoting Payne & Nix, supra at 4). [Return to text]
[21]. Hunter, 499 P.3d at 725–28. The term nuisance in legal terminology generally refers to anything you do that makes it difficult or impossible for your neighbor to live peacefully. See id. It is a broad term, but most people have a general understanding of what it entails. See id. The same cannot be said for the concept of public nuisance, which is much vaguer and, as a result, far more dangerous. See id. Nuisance is defined as
[a] condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways.
Nuisance, Black’s Law Dictionary 896 (11th ed. 2019). There are two varieties of nuisance torts: public nuisance and private nuisance. A public nuisance is generally, “[a]n unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property.” Id. at 897. [Return to text]
[22]. Peter C. Condron et al., supra note 3, at 17–19; see Hunter, 499 P.3d at 724, 740; Restatement (Second) of Torts § 821B (1965) (discussing the history of public nuisance law and comparing opioid litigation based on how narrowly or broadly the judges presiding over the litigation view the public nuisance doctrine). The term “public nuisance” is so ambiguous that, eighty years ago, the author, law professor, William Prosser, called it a “legal garbage can.” William L. Prosser, Nuisance Without Fault, 20 Tex. L. Rev. 399, 410 (1942). Prosser meant that the definition is so broad that almost anything could be classified as a public nuisance. Prosser supra; see Richards, supra note 20. [Return to text]
[23]. See generally The Master Settlement Agreement, Nat’l Ass’n of Att’ys Gen. Cent. for Tobacco & Pub. Health, https://www.naag.org/our-work/naag-center-for-tobacco-and-public-health/the-master-settlement-agreement/ [https://perma.cc/5LHH-QMSS] (last visited Jan. 21, 2022) (discussing the 1998 Master Settlement Agreement (“MSA”) between over fifty-two state and territory attorneys general and more than forty-five tobacco companies to recover billions of dollars lost to smoking-related illnesses); Doug Rendleman, Common Law Restitution in the Mississippi Tobacco Settlement: Did the Smoke Get in Their Eyes?, 33 Ga. L. Rev. 847–48 (1999) (exploring the MSA that ended the tobacco litigation, which included an entirely new way to regulate tobacco manufacturers—reaching a $206 billion plus settlement). The tobacco settlement was lucrative for the states and the law firms involved—Mississippi law firms that began the lawsuits received $1.4 billion. Id.; Donald G. Gifford, Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation, 49 B.C. L. Rev. 913, 940 (2008). [Return to text]
[24]. Gifford, supra note 23, at 931. [Return to text]
[25]. Id. [Return to text]
[26]. Id. [Return to text]
[28]. Id. [Return to text]
[29]. Id. [Return to text]
[31]. See id. [Return to text]
[32]. See id. at 921–30; see Master Settlement Agreement, supra note 23. [Return to text]
[33]. Gifford, supra note 23, at 930. [Return to text]
[34]. Id. at 922. [Return to text]
[35]. See id. [Return to text]
[36]. See Colin Dwyer, Your Guide to the Massive (And Massively Complex) Opioid Litigation, NPR (Oct. 15, 2019, 9:05 AM), https://www.npr.org/sections/health-shots/2019/10/15/761537367/your-guide-to-the-massive-and-massively-complex-opioid-litigation [https://perma.cc/P7F9-S6VA]; see also Christine Minhee, All Major Opioid Manufacturers, Distributors, and Retailers Have Offered to Settle, Opioid Settlement Tracker, https://www.opioidsettlementtracker.com/globalsettlementtracker [https://perma.cc/WU5L-N47C] (last visited Jan. 23, 2023) (documenting the extensive history of the opioid litigation); What are Opioids, Am. Soc’y of Anesthesiologists, https://www.asahq.org/madeforthismoment/pain-management/opioid-treatment/what-are-opioids [https://perma.cc/3CQ2-3Q6T] (last visited Jan. 23, 2023). Opioids are a class of drugs that include prescription painkillers such as oxycodone and hydrocodone, as well as illegal drugs like heroin. Id. Furthermore:
Opioids attach to proteins called opioid receptors on nerve cells in the brain, spinal cord, gut, and other parts of the body. When this happens, the opioids block pain messages sent from the body through the spinal cord to the brain. While they can effectively relieve pain, opioids carry some risks and can be highly addictive. The risk of addiction is especially high when opioids are used to manage chronic pain over a long period of time.
Id. [Return to text]
[37]. See Overdose Death Rates, Nat’l Inst. on Drug Abuse (Jan. 20, 2022), https://nida.nih.gov
/research-topics/trends-statistics/overdose-death-rates [https://perma.cc/SC2M-7KHJ] (“Drug overdose deaths involving prescription opioids rose from 3,442 in 1999 to 17,029 in 2017. From 2017 to 2019, the number of deaths declined to 14,139,” followed by an increase to 16,416 in 2020.). [Return to text]
[38]. Id. [Return to text]
[39]. See Overley, supra note 1; Christine Minhee & Steve Calandrillo, The Cure for America’s Opioid Crisis? End the War on Drugs, 42 Harv. J. of L. & Pub. Pol’y 547, 547–623 (2019). [Return to text]
[40]. Overley, supra note 1. [Return to text]
[41]. Compare City of Huntington v. AmerisourceBergen Drug Corp., 609 F. Supp. 3d 408 (S.D.W. Va. 2022) (In a nuisance claim brought against wholesale distributors of pain drugs, a federal district court denied plaintiff’s claims, stating that “[t]o apply the law of public nuisance to the sale, marketing and distribution of products would invite litigation against any product with a known risk of harm, regardless of the benefits conferred on the public from proper use of the product.” Id. at 474. The court explained that while “the opioid crisis has taken a considerable toll on the citizens . . . [a]nd while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law.” Id. at 484), with Cnty. of Lake v. Purdue Pharma, L.P. (In re Nat’l Prescription Opiate Litig.), 589 F. Supp. 3d 739 (N.D. Ohio 2022) (a case in which the jury found Walmart, CVS, and Walgreens guilty of not properly monitoring opioid prescriptions, and in which the Northern District Court of Ohio held there was evidence to suggest these pharmacies knowingly failed to take measures which would prevent the diversion of these prescription medications). [Return to text]
[42]. See Overley, supra note 1; Condron et al., supra note 3 (explaining that “in the ongoing opioid litigation battles . . . both defendants (e.g., pharmaceutical companies) and plaintiffs (e.g., local governments) [have achieved] significant victories. The outcomes may have been contingent on whether a judge or jury decided their fate—with judges seeming more favorable to defendants and juries more inclined to side with plaintiffs. But of paramount importance in the cases is how broadly (or narrowly) the judges presiding over the litigation view the public nuisance doctrine.”). [Return to text]
[43]. State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 724–25 (Okla. 2021) (“Applying the nuisance statutes to lawful products as the State requests would create unlimited and unprincipled liability for product manufacturers; this is why our court has never applied public nuisance law to the manufacturing, marketing, and selling of lawful products,” and conduct that “[a]nnoys, injures or endangers the comfort, repose, health, or safety of others” is not automatically criminal or property-based conflict.). [Return to text]
[44]. Id. at 724–25, 725 n.14, 726, 740 (quoting Cnty. of Johnson by Bd. of Educ. v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D. Tenn. 1984)) (discussing the history and evolution of public nuisance, the court held Oklahoma’s nuisance statutes do not cover the state’s alleged harm, and stated that the only cases where the court “considered whether a defendant was liable for public nuisance involving the marketing or selling of goods was when the marketing or selling of that product was illegal” and explained that “[f]or the past 100 years, [the court], applying Oklahoma’s nuisance statutes, has limited Oklahoma public nuisance liability to defendants (1) committing crimes constituting a nuisance, or (2) causing physical injury to property or participating in an offensive activity that rendered the property uninhabitable” (citations omitted)). [Return to text]
[45]. Id. at 725–26, 730 (quoting Donald Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 817 (2003)) (explaining that Oklahoma law historically rejects perpetual liability and had already done so in other types of tort law, and refusing to expand Oklahoma’s nuisance statute to the production, marketing, or sale of prescription opioids). [Return to text]
[46]. Id. at 726–27. [Return to text]
[47]. Id. [Return to text]
[48]. Id. at 728. [Return to text]
[49]. Id. at 728. Furthermore, the court explained:
A product which has caused injury cannot be classified as a nuisance to hold liable the manufacturer or seller for the product’s injurious effects, since a defendant who does not control the enterprise in which the product is used is not in the situation of one who creates a nuisance; consequently, negligent manufacture or failure to warn of product-caused dangers does not give rise to a nuisance cause of action.
Id. at n.16 (quoting Charles J. Nagy, Jr., American Law of Products Liability § 1:19 (3d ed. 2021)). [Return to text]
[50]. Id. at 731. [Return to text]
[51]. Id. at 726. [Return to text]
[52]. Id. at 729. [Return to text]
[53]. Id. [Return to text]
[54]. See id. at 725, 730. [Return to text]
[55]. See Edgar Aliferov, Note, The Role of Direct-Injury Government-Entity Lawsuits in the Opioid Litigation, 87 Fordham L. Rev. 1141, 1145–46 (2018) (The FDA assesses opioid pain relievers before they come to market; whereas, once drugs are available for public consumption, it is the DEA’s duty to monitor the manufacturing, distribution, and possession of opioid pain relievers.). [Return to text]
[56]. Id. [Return to text]
[57]. City & Cnty. of S.F. v. Purdue Pharma L.P., No. 18-c-07591-CRB, 2022 U.S. Dist. LEXIS 142962, at *207 (N.D. Cal. Aug. 10, 2022). [Return to text]
[58]. See generally Khary K. Rigg, Samantha J. March & James A. Inciardi, Prescription Drug Abuse & Diversion: Role of the Pain Clinic, 40 J. Drug Issues (Nat’l Inst. of Health, Bethesda, Maryland), no. 3, 2010, at 681, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3030470/pdf/nihms224846.pdf [https://perma.cc/K7SS-XXW8] (A pill mill is a medical practice that is responsible for prescribing large quantities of potent medications, often without proper medical justification. These prescriptions are typically written for non-existent or minor conditions, and the patients may be unaware that they are receiving excessive amounts of medication. Pill mills can be found in a variety of settings, including doctor’s offices, pharmacies, and even online. Pill mills are a major problem in the United States where they contribute to the country’s ongoing opioid epidemic. In 2010, it was estimated that there were at least 4,000 pill mills in operation across the country.). [Return to text]
[59]. Cnty. of Lake v. Purdue Pharma, L.P. (In re Nat’l Prescription Opiate Litig.), 589 F. Supp. 3d 739, 747 (N.D. Ohio 2022). [Return to text]
[60]. See Gifford, supra note 23, at 944. [Return to text]
[61]. Id. [Return to text]
[62]. Id. [Return to text]
[63]. Thomas Sullivan, DOJ Announces Global Settlement with Purdue Pharma, Including Largest Penalty Ever Levied Against Pharmaceutical Manufacturer, Pol’y & Med., https://www.policymed.com/2020/10/doj-announces-global-settlement-with-purdue-pharma-including-largest-penalty-ever-levied-against-pharmaceutical-manufacturer.html [https://perma.cc/9FDS-PUGU] (last updated Oct. 22, 2020). The settlement includes a two-billion-dollar criminal fine and a three and one-half billion-dollar civil penalty. Id. The company was also required to give up its assets and be dissolved. Id. The DOJ’s settlement with Purdue Pharma is separate from the litigation against other defendants, such as Johnson & Johnson. Id. [Return to text]
[64]. See Minhee, supra note 36. [Return to text]
[65]. Sovereignty allows states to sue using parens patriae standing. See Gifford, supra note 23, at 931. The right to sue allowed states to go after Big Tobacco in the 1990s, and today, it allows them to sue pharmaceutical opioid manufacturers, distributors, and retailers, in order to recoup money against corporate defendants for damages caused to their “‘quasisovereign’ interests in the health, safety, and welfare of their citizens.” Id. (citing Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tul. L. Rev. 1859, 1865 (2000)); see Lydia Wheeler, Squandered Big Tobacco Money a Cautionary Tale in Opioid Cases, Bloomberg L. (June 19, 2019, 4:51 AM), https://www.bloomberglaw.com/bloomberglawnews/health-law-and-business/X9D8GT48000000 [https://perma.cc/F9NR-7SPP]; see generally State Approaches for Distribution of National Opioid Settlement Funding, Nat’l Acad. for State Health Pol’y (Dec. 13, 2022), https://www.nashp.org/how-states-administering-opioid-settlement-funds/ [https://perma.cc/278R-A8TA]. [Return to text]
[66]. Compare City of Chicago v. Beretta, 821 N.E.2d 1099, 1119–20 (Ill. 2004) (The Court explained, “. . . no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce. On the contrary, the courts have enforced the boundary between the well-developed body of product liability law and public nuisance law. Otherwise, if public nuisance law were permitted to encompass product liability, nuisance law ‘would become a monster that would devour in one gulp the entire law of tort.’ If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity.” (citations omitted) (quoting Camden Cnty. Bd. of Chosen Freeholders v. Beretta, 273 F.3d 536, 540 (3d Cir. 2001))), and People v. Sturm, Ruger & Co., 761 N.Y.S.2d 192, 204 (App. Div. 2003) (holding that corporations’ alleged conduct failed to support a claim for common law public nuisance), with In re Nat’l Prescription Opiate Litig., 2019 U.S. Dist. LEXIS 149641 (N.D. Ohio Sept. 3, 2019) (holding that state law claims by private third-party payors for costs of prescription opioids and for medical treatment associated with opioid misuse, addiction, and overdose against drug manufacturers and wholesale distributors, including for public nuisance, negligence, fraud, unjust enrichment, and civil conspiracy were not preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”). Id. at *3. This was because the claims against the company were not based on any wrong labeling or fraud by the FDA, they were based on fraudulent and misleading marketing of opioids, and the duty not to sell the opioids due to diversion concerns. Id. at *3). [Return to text]
[67]. See Mark A. Rothstein & Julia Irzyk, The Opioid Crackdown Leaves Chronic Pain Patients in Limbo, The Hill (Nov. 29, 2021, 9:31 AM), https://thehill.com/opinion/healthcare/583332-the-opioid-crackdown-leaves-chronic-pain-patients-in-limbo/ [https://perma.cc/E64M-H2H5]. [Return to text]
[68]. Id. [Return to text]
[69]. Id. [Return to text]
[70]. Id. [Return to text]
[71]. Id. [Return to text]
[72]. Id. [Return to text]
[73]. Id. [Return to text]
[74]. Pat Anson, CDC Report Ignores Suicides of Pain Patients, Pain News Network (June 7, 2018), https://www.painnewsnetwork.org/stories/2018/6/7/cdc-report-ignores-suicides-by-pain-patients [https://perma.cc/K8YU-SWAN] (“Most patients said they had been taken off opioids or had their doses reduced to comply with the CDC guideline, which has been widely adopted throughout the U.S. healthcare system. Many patients say they can’t even find a doctor willing to treat them.”). [Return to text]
[75]. Patrick Hayden, Comment, Parens Patriae, the Class Action Fairness Act, and the Path Forward: The Implications of Mississippi ex rel. Hood v. Au Optronics Corp., 124 Yale L. J. 563, 563 n.4 (2014). [Return to text]
[76]. See Gifford, supra note 23, at 913. [Return to text]
[77]. See Richards, supra note 20, at 458; and see Gifford, supra note 23 at 913–17. [Return to text]
[78]. See generally Gifford, supra note 23 (discussing the “questionable expansion of the state’s standing to sue parens patriae and a dubious [use] of longstanding torts such as public nuisance” to “supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one of their own visions.” Id. at 913). [Return to text]
[79]. See 15 Years Later, Where Did All the Cigarette Money Go? All Things Considered, NPR (Oct. 13, 2013), https://www.npr.org/2013/10/13/233449505/15-years-later-where-did-all-the-cigarette-money-go (last visited Mar. 14, 2023) (For example, Colorado used millions of its settlement to fund a literacy program and Kentucky used half of its settlement to fund agricultural programs.). [Return to text]
[80]. Jeffrey Miron, Greg Sollenberger & Laura Nicolae, Overdosing on Regulation: How Government Caused the Opioid Epidemic, Pol’y Analysis (Cato Inst., Washington, D.C.), Feb. 14, 2019, at 2 (The current opioid crisis is exacerbated by an increased demand for opioids, not from legal medical use, but rather from illegal sources. Id. at 2. In fact, restrictions on those seeking opioids likely contributed to a rise in overdoses as users turned to illicit means. Id. at 3. Although prescriptions have decreased in recent years, the epidemic has become more pronounced due to drugs such as heroin and fentanyl. Id. at 4. Additional limits on prescribing will not stop overdose deaths.). [Return to text]
