By Philip S. Goldberg, the managing partner of Shook, Hardy & Bacon L.L.P.’s Washington, D.C. office and serves as Special Counsel to the Manufacturers’ Accountability Project.

The Ohio Supreme Court is the latest court to reject public nuisance as a “super tort” to be used by local and state governments to address political, social, and environmental issues.1 Trial courts should note the continuing failure of this novel theory and dismiss attempts by governments to leverage public nuisance actions to drive settlements in cases ranging from global climate change to local car thefts.2

In re National Prescription Opiate Litigation

Several Ohio counties asserted common law public nuisance claims against national pharmacy chains to impose industry-wide liability on them for costs associated with treating opioid abusers. Sister cases have been brought against companies that manufacture and distribute opioids. The counties asserted that the social, economic, and health effects of illegal use of opioids by individuals in their jurisdictions qualify as a “public nuisance” and that companies that sold these medications should be liable for the costs associated with this “nuisance.”

In a short, straightforward ruling, the Ohio Supreme Court held that the Ohio Product Liability Act (OPLA) provides the exclusive remedy for harms caused by products. The court explained that a public nuisance is not a products-based tort at all. It arises out of an unreasonable interference with a right common to the general public—for example, blocking a public road so people cannot exercise their right to use it or dumping pollutants into a river to make it uninhabitable. To be liable for a public nuisance, the court continued, a person must have intentionally (unlawfully) or through an abnormally dangerous condition unreasonably interfered with the road or river.

Earlier “Unorthodox” Uses of Public Nuisance

The Ohio Supreme Court noted that about thirty years ago, governments started suing product makers and sellers over social, political, and environmental harms by invoking “unorthodox use[s] of the tort of public nuisance.” These lawsuits typically targeted manufacturers of products that had inherent risks or could be used—often criminally—by consumers to create harm to individuals. For example, some state and local governments sued former manufacturers of lead pigment and paint to remediate homes that landlords had failed to keep lead-safe, and some cities sued firearm manufacturers to recover costs associated with criminal gun violence.

These nontraditional public nuisance cases have routinely failed. Most courts have recognized that if the elements of public nuisance law—unlawful interference with a right common to the general public—were altered to impose liability on manufacturers and seller for general public health or safety matters involving products, governments could “convert almost every products liability action into a nuisance claim.”3 Liability would be “so broad and undefined that the presence of any potentially dangerous instrumentality in the community could be deemed to” invoke it.4 As a result, product sellers would be liable regardless of their “culpability.”5

More than two decades ago, the Ohio Supreme Court was one of the only courts in the country to embrace this novel view of public nuisance law. In a 2002 firearms case—City of Cincinnati v. Beretta USA Corp.—the court held that entities in the stream of commerce could be subject to liability under the tort of public nuisance for “manufacturing, marketing, distributing, and selling [products] in ways that unreasonably interfere with the public health, welfare and safety.”6

Ohio Legislature Repudiated Product-Based Public Nuisance Claims

The General Assembly responded to Beretta by clarifying that OPLA is the body of law for remedying product-based harms—including matters of public health and safety.7 When Ohio governments continued to file these public nuisance claims, the Assembly enacted legislation again. This time, it expressly included “any public nuisance claim or cause of action at common law in which it is alleged that the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling or sale of a product unreasonably interferes with a right common to the public.”8 The amendments made it clear that “product-liability claims disguised as public-nuisance claims” are not permitted, according to the Ohio Supreme Court.

Ohio Stays within Mainstream American Jurisprudence

Today, in most states, courts apply “what appears to be an absolute rule”: a seller of a product that “after being sold, creates or contributes to a nuisance cannot be liable for the nuisance-causing activity after the sale unless the manufacturer somehow controls or directs the activity.”9 As an ALI Restatement explains, public nuisance is “an inapt vehicle for addressing” risks associated with products.10 The tort has an entirely different purpose.

Given the allure for some of creating a “super tort,” trial courts are undoubtedly going to continue seeing unorthodox public nuisance actions. Already, there are public nuisance claims against energy companies to pay for costs associated with global climate change, to make car companies pay for costs associated with local car thieves, and targeting chemical manufacturers to remediate pollution caused by others who bought their chemicals and failed to dispose of the chemicals properly.

Trial courts hearing these cases should resist deviating from traditional law. As courts have stated, “it might be tempting to wink at this whole thing and add pressure on parties who are presumed to have lots of money. . . . But it’s bad law.”11 Further, legislators are better equipped to deal with broad public policy aspects of these social, political and environmental issues. Unlike courts, legislatures can hear from the stakeholders and consider all relevant facts because they are not limited to the parties and evidence in a case. They can also balance competing interests, such as ensuring access to prescription drugs despite risks of abuse and preserving access to affordable energy while meaningfully addressing the causes and effects of climate change.

The Ohio Supreme Court recognized these limitations. It acknowledged “the opioid crisis has touched the lives of people in every corner of Ohio” with “far reaching consequences” for affected “communities and for the State as a whole,” but courts “must yield to the branch of government with the constitutional authority to weigh policy considerations and craft an appropriate remedy.”

Notes

  1. In re Nat’l Prescription Opiate Litig., — N.E.3d –, 2024 WL 5049302 (Ohio Dec. 10, 2024).
  2. See generally Philip S. Goldberg, Is Today’s Attempt at a Public Nuisance “Super Tort” The Emperor’s New Clothes of Modern Litigation?, 31 Mealey’s Emerging Toxic Torts 15 (Nov. 1, 2022). Victor E. Schwartz, Phil Goldberg & Christopher E. Appel, Can Governments Impose a New Tort Duty to Prevent External Risks?  The ‘No-Fault’ Theories Behind Today’s High-Stakes Government Recoupment Suits, 44 Wake Forest L. Rev. 923 (2009); Victor E. Schwartz, Phil Goldberg & Christopher E. Appel, Can Governments Impose a New Tort Duty to Prevent External Risks?  The ‘No-Fault’ Theories Behind Today’s High-Stakes Government Recoupment Suits, 44 Wake Forest L. Rev. 923 (2009).
  3. County of Johnson, Tenn., By and Through Bd. of Educ. v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D. Tenn. 1984), order set aside in part on other grounds, 664 F. Supp. 1127 (E.D. Tenn. 1984).
  4. City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1114-16 (Ill. 2004).
  5. Tioga Pub. Sch. Dist. v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993).
  6. City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1141 (Ohio 2002).
  7. See Am. Sub. S.B. No. 80, 150 Ohio Laws, 7915, 7955 (codified at R.C. 2307.71(B)) (2005).
  8. See Am. Sub. S.B. 117, 151 Ohio Laws, Part II, 274, 2279 (codified at R.C. 2307.71(A)(13)) (2006).
  9. SUEZ Water New York Inc. v. E.I. du Pont de Nemours and Co., 578 F. Supp. 3d 511, 546 (S.D.N.Y. 2022).
  10. Restatement (Third) of Torts: Liability for Economic Harm § 8, cmt. g (2020).
  11. City of New Haven v. Purdue Pharma, L.P., 2019 WL 423990, at *8 (Conn. Super. Jan. 8, 2019).