A California judge who threw out municipal lawsuits against the opioid industry for supposedly causing a public nuisance could have just as well been speaking about a wave of similar lawsuits against the oil and gas industry.
In both cases, lawyers working on contingency have allied with government officials to sue companies producing legal products over the side effects from their use, in one case opioid addiction and in the other the accumulation of global-warming CO2 in the atmosphere. In both cases, the public nuisance theory hinges upon the nebulous boundary between the social benefits of widely used products and the inevitable damage they can cause.
In his tentative ruling dismissing lawsuits by the Santa Clara and Los Angeles counties last week, Judge Peter Wilson found that the government plaintiffs had failed to produce enough evidence to prove that Johnson & Johnson and other opioid makers had knowingly engaged in “a substantial and unreasonable interference with a public right.”
The key word here is “unreasonable,” the judge noted. The term pervades American tort law, in which juries commonly use it to assess whether a defendant negligently exposed someone to risk of harm. In public nuisance lawsuits, “unreasonable” has a more specific meaning: As the California Supreme Court ruled in an influential 1997 opinion involving the City of Santa Clara, courts must balance the benefits of a product or service against the damage they cause.
“The unreasonableness of a given interference represents a judgment reached by comparing the social utility of an activity against the gravity of the harm it inflicts,” the state’s high court ruled in People v. Acuna in 1997, upholding an injunction against the activities of street-corner drug gangs.
With their climate lawsuits, state and local governments – also often represented by private lawyers working on contingency -- claim ExxonMobil, Shell, BP and other oil and gas companies, along with industry associations, misled consumers about the science of global warming and thus induced them to consume more fossil fuels than they otherwise would have. The theory is almost identical to the one Judge Wilson and others have rejected in opioid public nuisance cases.
Most recently, the Oklahoma Supreme Court reversed a $465 million judge’s award against Johnson & Johnson, saying applying nuisance law “to lawful products as the state requests would create unlimited and unprincipled liability for product manufacturers.”
In those cases, plaintiffs have attempted to prove, through the opinions of their expert witnesses, that opioid manufacturers and distributors used false advertising and misleading marketing to convince physicians to prescribe too many opioids, which in turn caused an increase in addiction and overdose deaths.
The problem with this theory, Judge Wilson wrote, is that it isn’t enough to link increased sales of a product with increased side effects. Both the federal government and California approve of and specifically encourage the medically appropriate use of opioids to treat pain, the judge wrote, and the plaintiffs made no attempt to identify the damage caused by appropriate versus inappropriate prescriptions.
“The court must draw a distinction between conduct resulting in the anticipated, approved use, and conduct resulting from improper use,” the judge wrote. “The evidence does not permit the court here to draw (and measure) that distinction.”
Climate plaintiffs face a similar hurdle. While it is easy to claim, as Massachusetts Attorney General Maura Healey does in her state’s climate lawsuit, that the oil and gas industry engaged in false marketing to stimulate sales, the companies reply that they are specifically encouraged by state and federal law to drill for oil and produce refined products.
An added problem for climate plaintiffs, should judges follow the lead of Wilson, is individual states cannot possibly separate the harms from global warming they attribute to fossil fuels within their borders from harms caused by greenhouse gas emissions elsewhere around the world. That necessarily involves questions of federal and international law, defendants say, over which state courts can’t claim jurisdiction.
Climate plaintiffs have attempted to plead their way around some of these problems by citing other state laws including false advertising and consumer protection acts. Some federal judges have remanded lawsuits to state courts on that basis, ruling that no federal claims are involved. But Judge Wilson rejected the consumer protection claims in the opioid lawsuit before him, finding the plaintiffs had failed to prove that their marketing was false.
In one example, he cited an opinion by Stanford University researcher Dr. Ann Lembke, an expert for the plaintiffs, on the rate of opioid addiction that wasn’t supported by the scientific literature she cited.
“Advertising that takes a legitimate position on matters of scientific debate cannot be false advertising,” the judge concluded.
Rhode Island is currently fighting an appeal by climate defendants of a federal judge’s order remanding its case to state court. In their filings with the First Circuit Court of Appeals, the oil companies say Rhode Island’s “artful pleading” of state-law claims can’t hide the fact the lawsuit is really an attempt to win money to address the expected harms of climate change.
“Despite plaintiff ’s claims that defendants engaged in a disinformation campaign to conceal the risks of fossil fuels, the complaint is clear that the `singular source’ of all its alleged injuries is greenhouse-gas emissions caused by the `production, promotion, and sale of fossil fuels,’” the defendants say. “Any judgment as to the reasonableness of particular emissions or their alleged causal contribution to the overall phenomenon of climate change inherently requires an evaluation at an interstate and, indeed, international level."