November 16, 2021


Posted on November 16, 2021 by Tommy Wells

There is a widely recognized opioid crisis in America, affecting literally thousands of people who have become addicted to opioids. Something must be done to address this crisis, but is the 700 year old legal theory of public nuisance the answer? Recent developments suggest perhaps not.

Public nuisance law dates back to 12th Century England and the common law. A public nuisance is an unwarranted, unreasonable, or otherwise unlawful interference with a right common to the general public. It was originally a criminal offense only, enforceable by the state or other governmental entity, but it grew into a civil remedy in tort as well.

Virtually every state now has a public nuisance law, enforceable in tort by an affected litigant. Common types of public nuisance include environmental pollution, drug activity, storage of explosives, and possession of dangerous animals. The remedy is usually abatement of the nuisance. Thus, if a stream has been polluted, the remedy requires the polluter to stop the pollution and clean up the stream. But what if the pollution is not to the environment, but is essentially pollution of the human body due to improper use of an otherwise legal drug?

In recent years litigants have attempted to expand the scope of public nuisance law to encompass non-traditional subject matter, including the sale of otherwise legal items such as guns. Perhaps the most expansive interpretation can be seen in the cases brought by state and local governments to address the ill effects of over prescribed opioids.

However, this innovative application of public nuisance law has run into some judicial roadblocks. For example, the Oklahoma Supreme Court recently reversed a trial court’s award of damages to be paid by an opioid manufacturer, holding that public nuisance law did not cover the manufacture, marketing, and sale of prescription opioids. In addition, a California trial court has rejected public nuisance claims against several opioid manufacturers, finding that plaintiffs had failed to demonstrate that the volume of opioid prescriptions helped create the public nuisance and the extent of harm so created.

Conceptually, it is difficult to see the similarity between a public nuisance action seeking remediation of pollution and one seeking recompense for the manufacture and marketing of legal drugs such as opioids.  The recent case rulings may signal that the law of public nuisance is not malleable enough to cover such actions, leaving public nuisance as a remedy to address more traditional interferences with public welfare, such as environmental pollution.