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Lawsuits Decide Cases — They Don’t Solve Problems
Recent efforts by state attorneys general to target opioid addiction prove just that.
by JACK PARK
April 11, 2024, 9:20 PM


In my more than 40 years of practicing law, I have learned that while lawsuits can bring disputes to an end, they cannot solve problems.

Unfortunately, not all other lawyers have learned the same thing, and the effects of this can be vexing both to the law and to public policy.

As early as 2006, it was noted by Victor Schwartz and Phil Golberg how “some state attorneys general and personal injury lawyers have been trying to convert the tort of public nuisance into a cutting-edge legal theory” and to move it “far outside its traditional boundaries by using it to sue product manufacturers in an effort to circumvent the well-defined structure of products liability law.” While this may be a tempting shortcut around state legislatures for attorneys general to achieve their own policy ends, it represents a misuse of the legal system and could set a concerning new precedent for the use of public nuisance law.

Schwartz and Golberg explain that public nuisance law has a long, albeit narrowly applicable, history. They note that the “essence” of public nuisance law “is to allow governments to use the tort system to stop quasi-criminal conduct that, while not illegal, is unreasonable given the circumstances and could cause injury to someone exercising a common, societal right.” That could mean “blocking a public roadway or, in recent times, dumping sewage into a public river or blasting a stereo when people are picnicking in a public park.” A corollary of this history is that members of the public who are inconvenienced can only sue for damages, while governmental bodies can only sue to stop or abate the nuisance but cannot sue for money damages.

Many have identified the tobacco litigation of the 1990s as the “watershed event” in the process of turning product liability claims into nuisance claims. It also marked a significant step in normalizing contingency fee arrangements between private law firms and government entities, as it was the first time that attorneys general in a number of states entered into such agreements to support their legal efforts. Coincidentally, not only did these law firms stand to rake in huge amounts of fees from these no-bid contracts, but they frequently turned out to be top contributors to the hiring attorney general’s campaign fund.

Then–Connecticut Attorney General (and now Sen.) Richard Blumenthal, for example, hired four firms in total — including three that were in-state — to support his litigation efforts. These included Blumental’s former law firm, his former partner’s wife’s firm, and a firm whose managing counsel served as personal counsel and counselor to then–Connecticut Gov. John Rowland. Those three law firms, each of which was plugged into the attorney general or the governor, split $65 million in legal fees.

The attorneys general of other states, including Kansas, Texas, and Missouri, also hired friends and gave them giant paydays. Most notably, then–Missouri Attorney General Jay Nixon hired five law firms that had made contributions of more than $500,000 to his campaigns over eight years. Even though Missouri was the 27th state to join the tobacco litigation — and, as a result, the legal heavy lifting was already done — those firms split $111 million in fees.

Yet despite this blatant display of cronyism and backscratching, many current attorneys general seem intent on making the same mistake today. As Schwartz and Goldberg further explain, “Even though no court validated the use of public nuisance theory in the tobacco litigation, the use of public nuisance theory quickly became a misleading aspect of the state attorney general tobacco litigation legend.” Such misconceptions have pushed attorneys general to continue to move forward with this flawed legal strategy in other lawsuits, even though this litigation is hardly a model to be emulated.

The latest iteration of that legend has seen public nuisance statutes used by states and localities to pursue reimbursement for the effects of opioid addiction. The state of Oklahoma and the city of Baltimore have both contracted with plaintiffs’ trial counsel to pursue claims of reimbursement for the effects of opioid addiction in their jurisdictions. Fortunately, the Oklahoma Supreme Court reversed a judgment in favor of the state, reasoning that public nuisance law was not an appropriate remedy for the harm caused by opioid abuse, but Baltimore’s lawsuit continues to move forward and poses a serious legal threat.

The use of public nuisance claims by governmental bodies to pursue reimbursement for costs they claim to have suffered turns that theory on its head. Those actually injured by opioids are those who have abused them, something that the governmental bodies bringing suit haven’t done. Their proper role under public nuisance theory is to seek to abate the nuisance, not pursue damages. It is also odd to apply public nuisance law to a commercial activity, particularly one that is so highly regulated as the prescription drug industry.

More to the point, if one product can be the object of a public nuisance lawsuit, where is the stopping point? Other lawyers have solicited governmental bodies to hold energy producers liable for claimed injuries attributable to c*****e c****e. As Judge William Alsup observed in 2018, the lawyers behind the lawsuits were “asking for billions of dollars for something that hasn’t happened yet and may never happen to the extent you’re predicting it will happen.”

Should an attorney general successfully bring a public nuisance case against an opioid manufacturer or energy company, it could leave the door open for them to go after other politically undesirable industries and effectively sue them out of business, ultimately achieving a policy end run when they are legislating through litigation.

In the end, courts should be far more alert to efforts by lawyers to use them to solve problems. As is clear, lawsuits decide cases; they don’t solve problems.