CHARLESTON – A National Review opinion piece is critical of West Virginia Attorney General Patrick Morrisey for his office’s using public nuisance laws against pharmacies in opioid litigation.
Morrisey’s office, however, says the writer’s criticism misses the point of their claims against the drug stores.
The opinion piece, titled “Conservative AG Patrick Morrisey Can’t Use ‘Public Nuisance’ Laws to Go After Drug Stores,” was written by John Shu, a professor and attorney in Newport Beach, California. He worked for both President George H.W. Bush and George W. Bush and has extensive experience in litigation, corporate and constitutional law. The piece was published September 3 on the National Review website.
Shu
“Those persons or entities who actually are responsible for the opioid crisis must be held accountable, but … Morrisey’s recent lawsuits to join other states — and the heavily Democratic mass-tort plaintiffs’ bar — to recover money from pharmaceutical manufacturers and large pharmacy chains does not do so, and they are inconsistent with Morrisey’s claims of being a conservative," Shu writes. “This summer, Morrisey joined other states and sued Walmart, CVS, Rite-Aid, and Walgreens, alleging violations of the West Virginia Consumer Credit & Protection Act, which says that ‘unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful,’ and that such conduct led to a ‘public nuisance.’”
Shu says “public nuisance” has a specific legal meaning.
“And the highly regulated business of a pharmacy legally filling a doctor’s prescription is not it,” he writes. “A ‘public nuisance’ is when someone unlawfully interferes with the public’s right to use public land or water (such as a public road, park, or lake), or when someone uses his land to intentionally engage in illegal activity and disturbs the public’s access to or use of nearby land or water. …
“‘Public nuisance’ does not include selling legal products, and only the person or people unlawfully causing or controlling the illegal activity are responsible.”
Shu uses an example of chemical manufacturers not being liable under public nuisance laws if someone misuses the product to create toxic waste. He also compares it to playing card manufacturers not being responsible for running illegal gambling rings.
“Similarly, chain pharmacies such as Rite-Aid are not liable when individuals abuse pain medicines or commit crimes to obtain them, or when unethical doctors write pain-medicine prescriptions that they should not,” he writes. “It seems that the mass-tort plaintiffs’ bar, who are primarily concerned about using state enforcement power for their own financial gain, seduced Morrisey and other state attorneys general with the siren song of huge financial settlements.
“The fact that Morrisey outsourced previous opioid-related, mass-tort lawsuits to Motley Rice, LLC, which is headquartered in South Carolina and is one of the largest and most infamous mass-tort plaintiffs’ firms in the country, shows this.”
Shu claims elected officials “often mistakenly think that if the mass-tort plaintiffs’ firm succeeds, they will be able to successfully campaign on the monetary recovery and say that they ‘did something’ for their constituents.”
“The mass-tort plaintiff’s firms need a local or state government partner such as Morrisey so that they can sue companies or industries in behalf of an entire community while avoiding traditional class-action rules,” Shu writes. “For the mass-tort plaintiffs’ firms, whether or not the targeted companies actually caused harm or are otherwise legally responsible is irrelevant.
“In fact, the more broadly they cast blame, the more the firms believe that they can get away with not having to prove specific allegations against specific actors.”
Shu argues that Morrisey knows “the heavily Democratic mass-tort plaintiffs’ bar has tried to expand public nuisance and remove traditional property and causation requirements so that they could sue, without limitation, manufacturers and other companies for billions of dollars when someone intentionally misused one of their legally made and legally sold products.”
He compares it to Ford being sued if someone used a Ford truck to run over someone or if someone claims exhaust from a Ford vehicle contributed to global warming.
“Top of Form
They do this because they know they cannot win a traditional products liability or intentional torts case,” Shu writes. “They are, in essence, trying to ‘shake down’ businesses that sold or sell legal products and broke no law for huge financial settlements.”
Shu says these attorneys used similar theories in the 1970s to sue industries for smog. In the 1980s, he says it was plastic manufacturers who took the hit, followed by paint, caulk and firearms manufacturers.
“These public-nuisance lawsuit abuses were somewhat different in subject matter, but they all sought to create massive collective liability where none existed over a complex issue, even though there were no actual legal or factual grounds to sue the targeted companies or industries,” Shu writes.
He contends that if Morrisey and the courts allow these “flawed public-nuisance lawsuits” against pharmacies to proceed, it “will encourage attacks against disfavored or politically unpopular industries such as vaping and e-cigarette companies (addiction, abuse); oil, gas, fracking, and coal companies (global warming); and fast-food and restaurant chains (obesity, addiction).”
“Interestingly, the mass-tort plaintiffs’ firms do not seem to use public-nuisance lawsuits against the entertainment, high-tech, wind power or solar-power industries, or any other industry that is usually associated with Democrats or liberals,” Shu writes. “These legally erroneous public-nuisance lawsuits contravene traditional legal principles, rule of law, and separation of powers.
‘If a state legislature or municipal city council wants to legislatively expand the definition of ‘public nuisance,’ then they can put it to their voters and live with the legal and economic consequences. But legislation through litigation (‘litigslation’) is an inappropriate use of the courts and civil-justice system to set public policy.”
Shu says he finds it disappointing that Morrisey, a conservative, is mounting such a “Democratic-friendly public-nuisance mass-tort scheme” based on his history.
“(Morrisey) led a groundbreaking, multiyear investigation of the Obama administration’s failure to properly manage the DEA’s National Drug Quota System from 2010 to 2016 and thus the amount of opioids produced,” Shu writes. “Moreover, the Obama DOJ apparently slow-walked Morrisey’s FOIA requests.”
Shu concludes by hoping Morrisey changes course.
“Morrisey still has time to do the right thing, return to the conservative and legal principles on which he campaigned, and keep his promises to West Virginia’s voters,” Shu writes. “If he does, he will be a great example to other state attorneys general, regardless of party affiliation.”
When asked for a response to Shu’s piece, Morrisey spokesman Curtis Johnson said the office’s allegations against the drug stores “have very little to do with the article’s criticism.”
“Our lawsuits do not assert claims related to any defendant’s role in dispensing opioids to patients, but instead targets each defendant as an individual distributor that allegedly supplied far more opioids to their own retail pharmacies than could have served a legitimate market for such drugs,” Johnson told The West Virginia Record. “Each defendant distributor allegedly filled suspicious prescription opioid orders from their own pharmacies in terms of unusual size, frequency and deviation from normal patterns.
“The lawsuit further alleges the defendants failed to report or stop such shipments.”