Anthony T. Caso, is a Senior Fellow with Claremont Institute. He recently retired from his position as Clinical Professor of Law at Chapman University Fowler School of Law.

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Who should decide the major questions of public policy, balancing economic and social harms on issues such as prescription of lawful medicines?  Fittingly on July 4, the federal district court for the Southern District for West Virginia decided that the people (through their elected representatives in the legislature), rather than courts, still make the rules in our representative democracy.  The City of Huntington v. Amerisourcebergen Drug Corp., Nos. 3:17-01362 and 3:17-01665 ( SD West VA, 2022).

The case was an attempt to hold pharmaceutical distribution companies legally responsible for the opioid epidemic.  The court resoundingly rejected this latest attempt to impose massive damage awards against distributors of lawful prescription pharmaceuticals under public nuisance theory.  As the court noted, the distributors being sued had filled lawful orders from pharmacies that were backed by lawful prescriptions issued by the medical doctors based on the doctors’ reasonable medical judgment.

The plaintiffs’ theory was that those in the pharmaceutical distribution chain should be held responsible for the abuse of both prescription and illegal narcotics, and therefore should be made to pay.  The problem with that idea is that the plaintiffs filing these cases cannot point to any law that the companies violated.  That is where public nuisance theory comes in.

Nuisance is a type of civil action where an individual sues for injury to his property or injury to the use and enjoyment of his property.  Thomas W. Merrill, Is Public Nuisance a Tort?, 4 J. Tort L. 1, 7, 9 (2011).  An example might be your next-door neighbor deciding to start a commercial hog farm, invading your property with the noise the noise and aroma of that activity.

A public nuisance, by contrast, is a civil claim that was created by the courts nearly a thousand years ago to stop interference with public property (or, at the time the action was created, the king’s property) Victor E. Schwartz, Phil Goldberg, and Corey Schaecher, Game Over? Why Recent Supreme Court Decisions Should End the Attempted Expansion of Public Nuisance Law, 62 Okla. L. Rev. 629, 632 (2010).  Courts later expanded the theory to protect “public rights” to use the roads or be free of pollution.  Id.  The distinction between a public nuisance and a regular civil action is that the public nuisance does not protect personal rights.  Rather, it is designed to stop an interference with rights held by the public generally.  Merrill at 7-8.  An individual suffering an injury to personal rights would sue for damages and would have to prove that the defendant acted intentionally or negligently.  See id. at 15.  Public nuisances, however, do not support a claim for damages, but are a tool for the court to order the defendant to “abate” the condition causing harm to the public.  Id. at 7; Schwartz at 7.  Because the claim for public nuisance was limited to an interference with an interest held in common by the public, it was an action that was only brought by a public official, such as the attorney general or district attorney.  Merrill at 12.

In the early 1970s environmental advocates convinced the American Law Institute to redefine “public nuisance” as any “unreasonable interference” with right held in common by members of the public, dropping the requirement that the conduct or condition violate the criminal law or be tied to the use of property.  Id. at 5.  This change invited the courts to define what was a right held in common by the public and what constituted an unreasonable interference.  Plaintiffs, like those in this case, wanted to take the peoples’ representatives in the legislature out of the process of balancing social costs and harms that result from creating a new cause of action.  Instead, plaintiffs argue, the courts should decide what constitutes a public nuisance.  Once a court determines that an otherwise legal activity constitutes a public nuisance, the plaintiffs bringing these suits are able to creatively reinterpret what it takes to “abate” that public nuisance.  Instead of an injunction requiring the defendant to stop actions that interfere with public rights, litigants now seek massive damage awards to fund new public programs (after payment of plaintiffs’ attorneys fees).

In this case, the plaintiffs argued that distributors of legal opioid prescription medication were at fault for the opioid epidemic because they filled orders from pharmacies backed by lawful prescriptions from medical doctors.  The court rejected that argument.  “[T]he distribution of medicine to support the legitimate medical needs of patients as determined by doctors exercising their medical judgement in good faith cannot be deemed an unreasonable interference with a right common to the general public.”  Amerisourcebergen, Findings of Fact and Conclusions of Law at 161.

In detailed factual findings, the court concluded that pharmaceutical distributors complied with federal law and worked with the Drug Enforcement Administration to help prevent the illegal use of prescription drugs.  To allow a claim for public nuisance in this case, the court ruled, would “‘open the courthouse doors to a flood of limitless, similar theories of public nuisance.’”  Id. at 159 (quoting People ex rel. Spitzer v. Sturm, Ruger & Co., 761 N.Y.S. 2d 192, 196 (2003)).  The court noted that the “economic harm and social costs” of allowing such a claim “would obviously be extensive.”  Id. at 158.  The balancing of those social costs against the claimed public nuisance is the job of the legislature, not the courts.  Here, the court refused to usurp the role of the legislature