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Monday, September 16, 2019

Judge allows Rhode Island's opioid suit to go forward despite public nuisance precedent

Attorneys & Judges

By Daniel Fisher | Aug 20, 2019


PROVIDENCE, R.I. (Legal Newsline) - A Rhode Island judge has allowed the state’s lawsuit against opioid manufacturers to proceed despite a 2008 ruling by the Rhode Island Supreme Court over lead paint that appears to rule out public nuisance lawsuits over products.

In a 46-page decision, Superior Court Justice Alice Gibney rejected arguments by Purdue Pharma, Teva, Mallinckrodt and other defendants that State of Rhode Island vs. Lead Industries Association set out clear requirements for public nuisance lawsuits including that the defendant had control over whatever it is that caused the nuisance. 

The decision also states flatly that “the law of public nuisance never before has been applied to products, however harmful.”

Justice Gibney clearly decided it is time to test that premise. Ruling in favor of the State, she said Rhode Island had adequately pled facts suggesting the opioid industry had fraudulently marketed its products and that “freedom from an overabundance of prescription opioids is a public right.” 

The judge also rejected the defendants’ claim they couldn’t be held liable for products they had no control over when they were abused. The alleged “nuisance” wasn’t the pills, the judge found, but misrepresentations and fraud the companies used to “falsely promote and distribute these medicines generally.”

The Aug. 16 decision is certain to be appealed, though no one from Purdue was immediately available for comment. Justice Gibney rejected out of hand arguments based upon the central holding of the Lead Industries decision, which is that public nuisance claims must be based on behavior that a court can abate with a judicial ruling. 

Without control over the instrumentality that is causing the nuisance, the Rhode Island Supreme Court ruled, the defendant can’t be ordered to abate anything.

“However grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm,” the court ruled then.

The 2008 lead paint decision came in a case that was almost identical to the state’s lawsuit against the opioid industry, down to the private lawyers leading the litigation team and hoping to profit from it: Motley Rice. Citing prior rulings dismissing public nuisance lawsuits against the gun industry, the court said expanding the law as the State wanted would mean a wave of similar litigation against distillers, brewers and cellphone companies over claims they caused the public nuisance of traffic accidents.

“Expanding the definition of public right based on the allegations in the complaint would be antithetical to the common law and would lead to a widespread expansion of public nuisance law that never was intended,” the court wrote, citing Edmund Burke that “bad laws are the worst sort of tyranny.”

That’s why public nuisance law has mostly been confined to claims involving activities in a specific place or affecting public rights like the right to clean air, water and open roadways, the court wrote.

“The enormous leap that the state urges us to take is wholly inconsistent with the widely recognized principle that the evolution of the common law should occur gradually, predictably, and incrementally,” the high court ruled. “Were we to hold otherwise, we would change the meaning of public right to encompass all behavior that causes a widespread interference with the private rights of numerous individuals.”

The opioid defendants also argued the state’s claims were preempted by federal law including the Controlled Substances Act, which gives federal law enforcement and regulators complete control over how many opioid pills are produced and how they can be sold. Justice Gibney rejected those arguments, saying the cases the defendants cited involved product liability, not state claims of negligence and fraud. 

However, in the lead paint ruling, the court specifically ruled that lead paint producers couldn’t be ordered to abate a “nuisance” that state legislators had already addressed with numerous laws requiring landlords and property owners to take care of lead hazards themselves. 

The court also warned against confusing products-liability lawsuits with public nuisance cases, saying the mere fact a product causes injury doesn’t mean it can be classified as a nuisance to get around specific requirements of products-liability law. Those include identifying the specific product that caused a specific injury.

In an ironic switch over the 11 years since the lead paint ruling, Justice Gibney cited the growing momentum toward using public nuisance law against opioid producers and called a Connecticut decision dismissing lawsuits by several cities an “outlier in governmental entity opioid litigation.” 

Back in 2008, the Rhode Island Supreme Court took the directly opposite view of the law, citing an academic article saying the “manufacture and distribution of products rarely, if ever, causes a violation of a public right as that term has been understood in the law of public nuisance.”

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Organizations in this Story

Mallinckrodt Pharmaceuticals Purdue Pharma L.P Rhode Island Office of the Attorney General Teva Pharmaceuticals

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