By Eric G. Lasker, a Partner, and Jessica L. Lu, an Associate, with Hollingsworth LLP in Washington, DC.

Plaintiffs have long utilized the doctrine of public nuisance as a judicial avenue to force corporations to bear the costs of addressing social harms.  In recent years, however, such claims have proliferated as a result of high-profile cases and plaintiffs’ success in the courtroom.  This success will likely spur additional litigation and solidify the doctrine’s place in the plaintiffs’ litigation toolbox.  This Legal Backgrounder first presents an overview of the public nuisance doctrine and its ongoing development.  It next examines how the Oklahoma opioid case—the first case in which an opioid defendant was held liable for creating a public nuisance—failed to examine the doctrine’s history, a shortcoming that should doom the decision on appeal.  The article also provides insight into how this high-profile ruling may give rise to additional public nuisance litigation.