Public Nuisance Lawsuits Are a Monster That Could Devour All of Tort

A closely watched trial in Oklahoma against Johnson & Johnson not only threatens to upset the rule of law but could backfire badly on the Oklahoma economy.

This case is the first of almost 2,000 lawsuits against opioid manufacturers and distributors to go to trial. It will be a crucial test of whether a court will allow the scarcely-used public nuisance theory to be distorted to fix broader social problems. If Oklahoma wins, the ramifications won’t stop with the pharmaceutical industry. Government officials and their hired-gun private lawyers will use the same weapon against any other business they think imposes costs on the public at large, including Oklahoma’s energy industry.

Nuisance law is a particularly bad fit for this purpose. With roots in medieval England, the law of public nuisance has long been limited to claims over unreasonable interference with a public right—mainly access to public roads and waterways. It was never intended to be applied to broad claims over products, and with good reason. Its vague nature would allow for lawsuits over virtually any harm caused by any product in anyone’s hands, whether that means injuries stemming from autonomous vehicles or costs associated with global warming.

Oklahoma Attorney General Mike Hunter is aware of this fact when it comes to the energy industry, his state’s largest employer. He joined 17 other state attorneys general in May to urge the U.S. Court of Appeals for the Ninth Circuit to reject lawsuits against five of the largest oil companies over climate change, saying courts are not the appropriate place to determine public policy, especially when “the list of potential defendants is endless.” In an op-ed last year, he criticized “coastal elites” who “force manufacturers to spend millions in legal bills, instead of millions on creating new jobs.”

The same is true of the state’s ill-conceived lawsuits against the opioid industry. While no one denies the magnitude of the opioid problem in Oklahoma and the need for solutions, suing the tightly regulated companies that produce and distribute these medications isn’t the way to fix a widespread problem. Solutions—and there are a number of things we need to do—should come from our elected officials, not lawyers in search of personal profit.

A judge in North Dakota recently acknowledged this, throwing out that state’s lawsuit against an opioid manufacturer, saying the defendant couldn’t have caused a “public nuisance” when it had no control over how its products were prescribed or used. One of the keystones of public nuisance law is it is used to abate the nuisance: unblock the road, cease the loud music in a residential neighborhood, or shut down a rodent-infested building. It shouldn’t be used to extract money from companies that had no control over their products after they were sold.

The energy industry, directly and indirectly, contributes more than $65 billion to the Oklahoma economy and supplies 22 percent of tax revenue. It also provides a quarter of the state’s jobs. As unpopular as the opioid industry is today, do we want to make an example of it that courts are sure to replicate with every other industry who fall out of favor?

The most vocal advocates of suing the opioid industry—the private contingency fee lawyers—point to the $260 billion tobacco settlement as their model. But only a fraction of the money from that settlement went toward reducing smoking-related disease, while billions flowed to the small group of lawyers who represented the states. Some of those same lawyers are now involved in opioid and climate litigation.

Sadly, this trend is continuing in Oklahoma, where earlier this spring, the state’s recent $270 million opioid settlement yielded a mere $13 million for the victims—less than five percent—and $60 million going to trial lawyers representing the state.

Oklahoma’s opioid case is being heard by a single state court judge in Norman and is expected to go on well into the summer. But what’s really on trial is the expansion of public nuisance law. The stakes are high not just for Oklahoma, but the rest of the nation. As the U.S. Court of Appeals for the Eighth Circuit put it, a transformation of this 900-year-old legal construct would unleash “a monster that would devour in one gulp the entire law of tort.”