Prescription for Failure: Public Nuisance Claims Against the Opioid Industry

Opioids have been used both medicinally and recreationally since ancient times. While their recreational functions have long since been denounced, their medicinal value remains legitimate. Yet, since the pain management revolution began in the mid-1990s, many Americans have become opioid-dependent—fueling an illicit drug market and costing many lives. The tragedy that is today’s opioid epidemic has prompted robust federal and state legislative and regulatory interventions in both the legal and illicit opioid markets—albeit with mixed success. As these initiatives have been slow to quell the opioid crisis, public nuisance claims have taken center stage. After the Big Tobacco litigation invoked the common law doctrine and ultimately resulted in the historic Master Settlement Agreement, public nuisance captured the attention of state governmental entities in the firearm and lead paint industries. Those litigations produced varying results among the states. While some courts properly rejected the novel application of public nuisance to the manufacture, sale, and distribution of lawful products, others permitted claims to survive past the motion to dismiss stage, prompting product manufacturers, distributors, and retailers to agree to exorbitant settlements. Perhaps unsurprisingly then, the legal theory has gained popularity in claims against deep-pocketed opioid industry actors. However, like the tobacco, firearm, and lead paint industries, public nuisance does not fit within the historically recognized definition of public nuisance, which has long been understood as being limited to unlawful activities and real property contexts. In addition to being, at best, unorthodox and novel, and at worst, legally deficient and unsupported by history and precedent, public nuisance is a poor vehicle to address a national, highly political problem—particularly in the legal prescription drug market, which touts many benefits and is already heavily regulated by the duly elected members of the legislative and executive branches of government.