Public nuisance lawsuits cannot be pursued against pharmacies selling prescription opioids

DAN TREVAS
Supreme Court
Public Information Office
Published: December 20, 2024

Two Ohio counties cannot claim national pharmaceutical chains caused a public nuisance by selling opioids and could only bring a lawsuit against the companies by following the procedures outlined in the Ohio Product Liability Act, the Supreme Court of Ohio ruled recently.
The U.S. Court of Appeals for the Sixth Circuit asked the Ohio Supreme Court to clarify whether the Ohio Product Liability Act (OPLA) abrogated, or abolished, the right to file a common law public nuisance case against product makers and sellers.
The Sixth Circuit is considering an appeal from CVS, Walgreens, and Walmart, which are part of the multidistrict national prescription opiate litigation pending in a Cleveland federal court. As a “bellwether case” to test the legal arguments of thousands of city and county governments along with other entities, the federal district court considered a case from Lake and Trumbull counties against the three chains. A federal jury found the chains liable for creating a public nuisance. The chains appealed to the Sixth Circuit.
A divided Supreme Court found that the OPLA, as amended in 2007, eliminated all forms of common law public nuisance cases for the sale of products and that the OPLA governs any public nuisance claim.
Writing for the Court majority, Justice Joseph T. Deters explained that state lawmakers added a second paragraph to the definition of “product liability claim” in R.C. 2307.71, broadening it to include “any public nuisance claim.” The counties argued the OPLA applies only to product liability claims involving defective products and claims seeking compensatory damages. The counties contended the law does not apply to their case because they did not make those types of claims.
Justice Deters noted the legislature inserted language into the law eliminating all common law product liability and public nuisance lawsuits allegedly caused by a manufacturer’s or supplier’s product and requiring that those complaints be pursued using only the OPLA.
“The plain language of OPLA abrogates product-liability claims, including product-related public-nuisance claims seeking equitable relief,” he wrote.
Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine and Jennifer Brunner joined Justice Deters’ opinion. Justice Patrick F. Fischer concurred in judgment only.
Justice Melody Stewart concurred in part and dissented in part, writing that the counties did not bring product liability claims under the plain language of the statute. The OPLA pertains to cases that seek compensatory damages. Since the counties did not ask for compensatory damages, but rather for “equitable relief in the form of money to be used for the abatement of the nuisance, i.e., funds to treat issues caused by the oversupply of opioids,” their common law nuisance suit could proceed, she concluded.
Justice Michael P. Donnelly joined Justice Stewart’s opinion.
Federal Court Grapples With Opioid Litigation
In the wake of the prescription opioid drug crisis, thousands of local governments, along with Native American tribes and other entities, brought lawsuits against opioid makers and sellers. The cases were all transferred to the U.S. District Court for the Northern District of Ohio in Cleveland. The lawsuits allege “that opioid manufacturers, opioid distributors, and opioid-selling pharmacies and retailers acted in concert to mislead medical professionals into prescribing, and millions of Americans into taking and often becoming addicted to, opiates.”
The federal judge presiding over all the cases selected a few bellwether cases, including the case from Trumbull and Lake Counties, to allow the parties to test their claims and defenses. The counties alleged that national pharmaceutical chains, including CVS, Walgreens, and Walmart, perpetuated “the opioid epidemic by filling prescriptions for opioids without controls in place to stop the distribution of those that were illicitly prescribed.”
The counties labeled their lawsuit as a common law absolute public nuisance claim. The Supreme Court of Ohio has defined a public nuisance as “an unreasonable interference with a right common to the general public” that “is based on either intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what care is taken.”
The pharmacies asked the federal court to dismiss the claim, arguing the OPLA was the only legal procedure the counties could invoke to sue the pharmacies if they alleged the pharmacies had created a public nuisance. The federal court denied the request. The counties prevailed, and the pharmacies appealed to the Sixth Circuit, which asked the Supreme Court to clarify the OPLA.
Supreme Court Analyzed Public Nuisance Law
Justice Deters outlined the history of the OPLA, which was enacted in 1998 and amended in 2005 and 2007 to limit the use of common law product liability theories to sue. The amendments were passed in the wake of several Ohio Supreme Court rulings on product liability cases, which invoked common law claims involving products instead of relying on the OPLA. One such case was Carrel v. Allied Products Corp. (1997), where the Court held that common law product liability causes of action for negligent design survived the enactment of OPLA. Another was Cincinnati v. Beretta U.S.A. Corp.in 2002, where the Supreme Court allowed Cincinnati to pursue a public nuisance lawsuit based on the manufacturer, marketing, distribution, and sale of firearms.
After the decisions in Cincinnati v. Beretta, Carrel v. Allied Products Corp. and other alleged nuisance cases, lawmakers amended the OPLA in response. In 2005, the General Assembly amended the law to abolish all common law product liability claims. Another amendment, which went into effect in 2007, changed the definition of “product liability claim.” Prior to the 2007 amendment, “product liability claim” was defined to mean a claim asserted in a civil action under sections 2307.71 to 2307.80 of the Revised Code and that seeks compensatory damages. In R.C. 2307.71(A)(13), the legislature retained in the first paragraph that a product liability claim was one made in a civil case and sought compensatory damages. The 2007 amendment added a second paragraph to the definition of “product liability claim. This second paragraph states, “‘Product liability claim’ also includes 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 general public.”
Justice Deters explained the debate between the parties centers on the words “also includes.” The counties interpret “also includes” to mean public nuisance claims are now included in the first paragraph of the definition in R.C. 2307.71(A)(13). That means a public nuisance claim must seek compensatory damages to qualify as a product liability claim under the OPLA, the counties asserted.
The pharmacies claim the use of “also includes” means the legislature created an entirely separate category of product liability claims comprised of any common law public nuisance claim regardless of the relief being sought.
The Court majority stated the pharmacies had the better argument. The provision was intended to add to the definition of product liability claim without any of the parameters included in the first sentence. The interpretation is further bolstered by an uncodified section of the 2007 amendment that explained the General Assembly’s intent, the opinion stated. The statement indicated the law was being amended to eliminate all common law public nuisance cases against manufacturers and suppliers.
“We recognize that the opioid crisis has touched the lives of people in every corner of Ohio. The devastation experienced by these private citizens, individually and collectively, undoubtedly has far-reaching consequences for their communities and for the State as a whole. Creating a solution to this crisis out of whole cloth is, however, beyond this court’s authority,” the opinion stated.
Nuisance Case May Be Pursued, Concurring and Dissenting Opinion Maintained
In her opinion concurring in part and dissenting in part, Justice Stewart wrote the OPLA, by its plain language, did not eliminate the counties’ claims seeking money to abate the public nuisance. She agreed with the counties’ argument that the amendments did not remove the requirement that a product liability claim must seek compensatory damages.
She wrote the counties sought “equitable relief.” Equitable relief was awarded by the federal court to abate the nuisance caused by the flood of opioids into the market, she stated. It was not compensatory damages, which are to compensate the counties for the loss of life or the economic consequences of opioid addiction, she noted. The counties proposed to use the money to construct and fund treatment facilities and expand drug treatment programs.
“These programs are designed to address both the current and long-term effects of the opioid epidemic, yet no one would argue that the programs are ‘compensating’ the counties,” she wrote.
She noted that the explicit language used by the General Assembly means only a public nuisance claim that seeks compensatory damages falls under the OPLA.
The case is cited 2023-1155. In re Natl. Prescription Opiate Litigation, Slip Opinion No. 2024-Ohio-5744.

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