OPIOID LITIGATION: WELCOME TO THE NUISANCE JUNGLE.

• Author: Fitzmaurice, Jonathan

INTRODUCTION

Nuisance--"the great grab bag, the dust bin, of the law" (1)--is a legal concept that "virtually defies synthesis" and is capable of encompassing everything and anything from "an alarming advertisement to a cockroach baked in a pie." (2) Heavily criticized as the most "impenetrable jungle in the entire law," (3) the notoriously vague and ill-defined concept of public nuisance (4) has been a viable target for plaintiffs to try and circumvent traditional tort law theories and concepts. (5) As Justice Blackmun of the United States Supreme Court once wrote, "one searches in vain... for anything resembling a principle in the common law of nuisance." (6) Currently, attorneys general are attempting to use public nuisance to impose liability on pharmaceutical manufacturers in response to the opioid epidemic. (7) This attempted use is "patently intended to circumvent the boundary between the well-developed body of product liability law and public nuisance law," (8) and to do so would permit public nuisance to "become a monster that would devour in one gulp the entire law of tort." (9)

This Note will focus on analyzing the historical roots and modern application of the public nuisance doctrine, with the purpose of determining whether public nuisance is an appropriate cause of action in product litigation, or if it is merely an attempt to end-run around traditional tort theories and concepts to impose liability on product manufacturers and distributors. It will specifically address this consideration with regard to imposing liability on pharmaceutical manufacturers for their role in the opioid epidemic, as well as the ramifications of doing so.

Part I will review the origin and evolution of the public nuisance doctrine. It will discuss the history and development of the criminal nuisance doctrine in England and its adoption and transition into an American tort. (10)

Part II will examine the use of public nuisance in several types of product litigation. It will focus on analyzing a variety of court decisions involving the application of public nuisance to different products, such as asbestos, lead paint, tobacco, and firearms. (11) It will conclude by discussing public policy and other issues courts consider when determining whether to permit an expansion of the tort's boundaries.

Part III will provide a background and overview of the opioid epidemic and discuss the rise of opioid litigation in response to the opioid epidemic, along with the state of opioid litigation in 2020. It will specifically explore and examine an Oklahoma District Court decision which held pharmaceutical manufacturer Johnson & Johnson liable for their role in the opioid epidemic--under a public nuisance theory--for damages in excess of $460 million. (12)

Part IV will explain how public nuisance has, in essence, become a super tort capable of imposing super-strict liability on product manufacturers. (13) It will further discuss how public nuisance has, and continues to be, inappropriately used as an end-run to circumvent traditional tort theories and concepts. (14)

Finally, the conclusion will discuss how this type of product litigation negatively effects product innovation and public policy. (15) It will also address why a court ruling on this type of litigation amounts to judicial infringement on the legislature's ability to regulate products, and therefore runs afoul to the Separation of Powers Doctrine of the U.S. Constitution. (16)

1. EVOLUTION OF THE PUBLIC NUISANCE DOCTRINE

   Public nuisance originated in the twelfth-century English common law with cases involving purprestures--"encroachments upon the royal domain or the public highway." (17) The scope of public nuisance broadened over time to cover a large variety of minor criminal offenses which involved interference with recognized, protected interests of the general public or community at large. (18) These interests broadly included public health, safety, morals, peace, comfort, convenience, and other public rights similar in kind. (19) An interference with a protected right common to the general public was deemed a criminal offense, and any person who committed this offense could be prosecuted by the Crown. (20) In addition to criminal prosecution, the Crown could seek to remedy the nuisance by filing an action for enjoinder or abatement against the individual. (21) Notably, regardless of whether an individual faced criminal prosecution or an action for enjoinder or abatement, only an appropriate public authority--and not a harmed individual--could seek to remedy the nuisance. (22)

   In the sixteenth century, an English court held for the first time that an individual person could bring an action in tort for public nuisance. (23) To succeed, the individual was required to show that he or she suffered a particular harm which was different in kind from the harm suffered by the public at large. (24) Recovery was not available merely because an individual suffered harm that was more severe than the public, but rather the individual harm "must have been different in kind" from the injury to the public in order to recover individual damages. (25) For example, if A built a bridge that unlawfully obstructed B's ability to boat along a publicly navigable stream, B could not recover damages from A under public nuisance for harm resulting from B's inability to boat because the harm B suffered is not different in kind from the harm to the general public. (26) The same would hold true even if B navigated the stream with his boat far more often than any other member of the public because recovery is limited to injuries which are different in kind, not merely more severe. (27) Conversely, if A had dug a trench which unlawfully obstructed a public highway, and B, without warning, drove into the trench and suffered physical harm, B could recover for those damages through public nuisance because physical harm is different in kind from the harm to the general public caused by the obstruction. (28) This ruling was subject to a great deal of scrutiny and was heavily criticized for unnecessarily providing recovery through public nuisance when negligence and other causes of action were better suited and available. (29)

   Despite its English origins as a common law crime, public nuisance has largely become an American common law tort. (30) When the criminal law transitioned away from the common law toward a codified statutory system, courts began to recognize the significant overlap between actions which were traditionally deemed a crime, but also constituted a tort. (31) A common law tort action for public nuisance was much easier than, and preferable to, codifying a criminal statute because state legislatures "could not anticipate and explicitly prohibit or regulate through legislation all the particular activities" that may constitute a public nuisance. (32) It seemed equally effective and more appropriate to bring a tort action to abate the "low-level quasi crime[]" rather than impose a criminal penalty given the relatively minor nature of the infraction. (33) Additionally, a tort action was actually more effective because it could reach a corporate defendant, whereas criminal prosecution could not. (34)

   American courts have largely adopted the public nuisance theory from English common law and predominantly require that four elements be satisfied to impose tort liability: (1) infringement on a public right; (2) unreasonable conduct; (3) control of the instrumentality causing the public nuisance; and (4) proximate cause. (35) Although courts often dispute over the boundaries of these four elements, even when they are established, the extent of recovery has always been quite limited. (36) Indeed, the "clear and consistent parameters" of public nuisance provide that a public authority may only seek equitable remedies through an action to enjoin or abate the nuisance, for it is a "time-honored" principle limitation that monetary damages are not available to public entities. (37) Although an individual plaintiff who suffered a particular harm different in kind from the harm to the general public is entitled to recover monetary damages for that harm there is no historical basis for extending this right to a public entity. (38)

   At the time of the Industrial Revolution, America's shift from an agricultural society to an industrial society introduced many new land uses for which there were very few regulations. (39) As a result, these new land uses carried consequences for the public that the government could not anticipate, and therefore could not regulate. (40) Public nuisance was an available means of redressing the unpleasant effects that industrial operations had on the public, such as air and water pollution. (41) However, the doctrine became largely irrelevant in the 1930s when statutory schemes and zoning laws were implemented to regulate industrial land use. (42) Arguably, in light of the new industrial regulations, "[t]he troubled history of nuisance law should thus have been no more than a footnote in a[] casebook on landuse planning or environmental protection." (43)

   The public nuisance theory did in fact remain rather dormant for years, but it was eventually revisited in the 1960s during the drafting of the Restatement (Second) of Torts. (44) At this time, environmental lawyers argued in favor of expanding the doctrine to impose liability on product manufacturers for a public nuisance that resulted from societal use of their product. (45) The lawyers sought to impose liability even if the product manufacturers' conduct was fully regulated and their products were lawful in accord with all existing regulations. (46) The drafters declined to include the lawyers' proposed legal expansion in the Second Restatement, cautioning that if "a defendant's conduct in interfering with a public right does not come within one of the traditional categories of the common law crime of public...