CHARLESTON – A federal judge soundly rejected the public nuisance theory behind most opioid litigation, further isolating the judge in charge of thousands of similar lawsuits who has consistently ruled in favor of plaintiffs on this very question.
In a decision released July 4, U.S. District Judge David A. Faber of the Southern District of West Virginia threw out the public nuisance claims of Huntington and Cabell County, saying the plaintiffs had failed to prove wholesale drug distributors had broken the law, let alone caused a crisis of illegal drug use and addiction.
The decision adds to judicial rulings that rejected the use of public nuisance law to assign liability for the sale and marketing of legal products, including by the Oklahoma Supreme Court and lower courts in California and Connecticut.
Faber
This latest decision, interpreting West Virginia law, directly contradicts rulings by U.S. District Judge Dan Aaron Polster, who oversees multidistrict opioid litigation and has sided with plaintiffs on the question of whether public nuisance law applies to the legal sale of drugs. Polster initiated his oversight of the MDL by announcing he wanted to “do something” about the opioid crisis and he wasn’t interested in holding trials on the merits of the claims.
The West Virginia decision isn’t binding on Polster, but it should influence judges elsewhere interpreting similar public nuisance law, said Donald Kochan, professor at the George Mason University Scalia Law School. Private lawyers working under contingency-fee contracts pursued the public nuisance theory in part because they knew they couldn’t prove liability using traditional theories such as defective products or fraud, Kochan said.
“The hope has always been they could dupe courts into believing public nuisance is an open-ended vessel for liability,” Kochan said. “But the court does not exist to resolve the ills of the world.”
The West Virginia decision comes after the U.S. Supreme Court decided in a somewhat related case that prosecutors must prove mens rea, or knowledge of wrong, when pursuing doctors on claims they wrongfully prescribed opioids. That decision, Ruan v. U.S., involved a higher standard of proof than in civil lawsuits but could influence opioid cases brought by state attorneys general that involve “quasi-criminal” penalties, Kochan said.
In his 184-page decision, Judge Faber said the plaintiff counties provided no evidence that distributors Amerisource Bergen, Cardinal Health or McKesson supplied a single illegal dose of opioids. They distributed the drugs to pharmacies that filled legal prescriptions, the judge ruled, snapping the chain of causation necessary to prove liability.
To rule otherwise would open “the floodgates of litigation” by allowing plaintiffs to sue over virtually any product, the judge wrote.
“To apply the law of public nuisance to the sale, marketing and distribution of products would invite litigation against any product with a known risk of harm, regardless of the benefits conferred on the public from proper use,” the judge wrote. “The economic harm and social costs associated with these new causes of action are difficult to measure but would obviously be extensive.”
The decision could help forestall litigation against other potentially risky products including cellphones (which can contribute to car accidents), fossil fuels, alcohol and guns. The judge specifically said the plaintiffs failed to prove the distributors acted unreasonably, a necessary element of any public nuisance claim. The plaintiffs tried to prove this by claiming the wholesalers released too many pills into the community, but the judge ruled they didn’t have any evidence to back it up.
“They offered no evidence, expert or otherwise, of how many prescription opioids should have been distributed,” the judge wrote. He dismissed the testimony of former Drug Enforcement Administration official-turned-plaintiff-witness Joseph Rannazzisi, who said 80 percent or more of the shipments were suspicious, criticizing his methodology as unreliable.
Despite judicial setbacks, opioid litigation has been a huge moneymaker for the politically connected private lawyers who recruited thousands of government entities to sign on as plaintiffs. Law firms including Motley Rice, Farrell & Fuller and Simmons Hanly Conroy stand to reap more than $2 billion in fees from settlements announced so far, including a $26 billion settlement by the Big Three drug distributors and Johnson & Johnson.
Many of those same law firms are pursuing government claims against oil companies over climate change. But facing judicial skepticism over the public nuisance theory, they appear to have shifted course to assert fraud, claiming consumers were duped into buying more fossil fuels than they otherwise would have purchased had they known about the danger of global warming.
“The fraud claims came with greater frequency as add-ons in climate and CO2 cases precisely when the public nuisance claims started to run into trouble,” Kochan said.
U.S. District Court for the Southern District of West Virginia case number 3:17-cv-01362