In America's tragic opioid crisis , trial lawyers believe they have found an untapped well of financial wealth. More specifically, they think they've found a way to collect legal fees by redefining the concept of nuisance laws for their personal gain. This get-rich-quick scheme will only line the pockets of trial lawyers and create new legal hurdles.
In our legal system , nuisance lawsuits were designed to resolve community-level situations such as the presence of malodorous, unsightly, or even toxic debris next to a residence or a contaminated well. An individual or company would only be subject to legal liability under this legal construct if they have caused another person to suffer loss or harm. This structure allows public nuisance laws to punish actions that are already illegal and harmful to communities so that those injured can be compensated.
Public nuisance litigation was never intended to create legal or regulatory standards. Yet that's exactly what trial lawyers are now trying to do.
By attempting to apply nuisance law in ways never intended, they are targeting companies they believe will settle for large sums, including pharmaceutical makers, pharmacies, gun manufacturers, and energy producers. Lawyers have used this scheme to cast a net wide enough to include any sufficiently deep-pocketed company that distributes or sells these products. Under this tortured application of public nuisance, it doesn't matter how the problem began or who is at fault so long as the lawyers get their payday.
This dangerous attempted expansion of public nuisance law is caused by trial lawyers' overreach, according to a recent report from the Heritage Foundation. "In the trial lawyers' conception of nuisance claims, almost anything can be couched as a public nuisance, and trial lawyers stand to gain a huge windfall in contingency fees without having to comply with class action rules if they are successful in persuading a state, city, or county government to let them litigate on its behalf," the report reads.
That's key because, often, it is taxpayers in jurisdictions that hire these lawyers who get left with the big legal fees when higher courts overturn jury decisions because the lower court incorrectly allowed these cases to advance.
A recent case in Ohio is a prime example of how out of control the process can become. Federal Judge Daniel Polster, who oversees all the multidistrict litigation opioid lawsuits across the nation, held a trial against several major pharmacy chains in his Ohio courtroom. Polster, who has been quite vocal about his role in solving the opioid crisis, has pushed for parties to settle cases quickly rather than go to court.
"Polster has pushed the defendants to pay up," the Wall Street Journal recently noted . "When the pharmacies refused, he scheduled a trial in a lawsuit involving the two Ohio counties. He then stacked the deck against the pharmacies and declined to call a mistrial after a juror shared information biased against the defendants with fellow jurors."
Unsurprisingly, that jury decided that several retail pharmacy chains created a public nuisance by failing to do enough to stem the abuse of opioids — even though every prescription filled was valid and the pharmacies complied with all regulations. What's ironic is that pharmacies have been sued for refusing to fill opioid prescriptions , and under this decision from Polster's court, these companies can now be sued for filling a prescription or not filling a prescription. That isn't justice.
Tellingly, the lawsuit was only brought against large chain pharmacies — CVS, Rite Aid, Walmart, Walgreens — not the small, independent pharmacies that fill the majority of opioid prescriptions in the two counties involved in the lawsuit. It's clear this is about targeting those with the largest wallets, not solving the complex problem of the opioid crisis. It certainly isn't about justice.
However, the verdict may only be a temporary victory for the trial lawyers and their shakedown schemes. The 6th U.S. Circuit Court of Appeals has overridden Polster on numerous occasions in these cases. In fact, the appeals court has "chastised the district judge" and said his court "abused its discretion."
Across the board, higher courts tend to be skeptical of the novel application of nuisance lawsuits. In the most recent example, the Oklahoma Supreme Court tossed out a $465 million judgment against Johnson & Johnson in a case employing the same dubious pharmaceutical public nuisance tactic by a 5-1 decision. Late last year, in a case against drug manufacturers, a California superior court judge similarly ruled in favor of J&J and other drug companies.
Despite these rulings from high courts, trial lawyers are not backing down in their effort to use public nuisance law against a variety of industries. Companies are incentivized to settle to avoid even greater exposure to lawsuits. The pressure from trial lawyers to settle creates a vicious cycle because that allows trial lawyers to receive a payday without having to face scrutiny from a higher court.
This abuse of public nuisance law must end. America cannot withstand punitive legal behavior by those who seek to retroactively rewrite laws they dislike. Ultimately, legislatures and principled judges must step up and end such jurisprudential hijacking. The creation of law is the purview of Congress and state legislatures, and trial lawyers do not constitute a fourth branch of government.
Jeff Stier is a senior fellow at the Consumer Choice Center in Washington, D.C.