Academic journal article Columbia Journal of Law and Social Problems

Settling High: A Common Law Public Nuisance Response to the Opioid Epidemic

Academic journal article Columbia Journal of Law and Social Problems

Settling High: A Common Law Public Nuisance Response to the Opioid Epidemic

Article excerpt


In recent years, plaintiff states have used public nuisance claims against manufacturers of products associated with a variety of major public health crises. Throughout the 1980s, 1990s, and early 2000s, various states attempted to use the tort of public nuisance to serve as a catch-all solution for novel public health concerns which some attributed to a failure to regulate goods like lead paint, tobacco, and firearms.1 Yet, public nuisance is a cause of action "whose boundaries are extremely indeterminate and whose use against product manufacturers is not well grounded historically."2 Even so, it was at the heart of litigation against tobacco companies in the 1990s, resulting in what is known as the Master Settlement Agreement - one of the most significant settlement agreements in American product liability jurisprudence.3 As such, states have continued to invoke it as a cause of action in the face of public health crises; most recently, a number of state4 attorneys general have included this claim as a cause of action against pharmaceutical manufacturers for the role that they have played in creating and maintaining the ongoing opioid crisis.5

This Note unpacks the role of public nuisance in public health-based products liability litigation and argues that by encouraging settlement, public nuisance actions may serve an invaluable role in filling the resource gap that has crippled the state's ability to combat the opioid crisis. Specifically, using public nuisance as a cause of action may encourage settlement as the potential remedy from such claims could be significant, and the lack of clear precedent makes it extremely difficult for either party to predict their likelihood of success. Many states have already adopted this approach; state officials simply need to restructure their perspectives regarding how these types of claims can create substantive improvements. The modern opioid crisis is unique, in that it is heavily driven by illicit nonprescription drugs.6 Accordingly, pharmaceutical regulation alone is unlikely to fully address the crisis. If state attorneys general pivot from focusing on injunctive relief and making policy recommendations to using these broad claims to obtain large financial settlements from manufacturers and distributors, they will be able to more effectively finance new programs, as well as existing legislative and regulatory efforts, and thus bring about positive change.

Part II of this Note discusses the background of the opioid crisis, and how state and federal legislatures and executives have responded to it. It then analyzes the high costs of dealing with the opioid crisis and explores how a lack of financial resources has stymied these legislative and regulatory responses. Part III explores public nuisance law, especially in the context of public health issues. It discusses the history of public nuisance suits in the public health and opioid contexts, explores concerns with the use of public nuisance as a litigation tool, and considers potential remedies that public nuisance causes of action enable. Part IV draws on previous settlements to create a template for how state attorneys general in settlement negotiations with opioid manufacturers ought to structure their settlements moving forward. It discusses the strengths and weaknesses of a number of notable settlement agreements and makes the case that attorneys general should view their role in this context as somewhat corrective, seeking to maximize the financial settlement while turning their focus away from attempts to create new regulations.7


Opioids are a class of drugs that interact with opioid receptors on nerve cells in the body and brain to help control acute pain.8 This class is broad, and includes both legal painkillers such as oxycodone, morphine, or hydrocodone, which are regulated by the Food and Drug Administration (FDA) and prescribable by doctors, as well as synthetic drugs like fentanyl,9 and the illegal drug, heroin. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.