COLUMBUS, Ohio (Legal Newsline) - The Ohio Supreme Court rejected the central premise of lawsuits that have produced some $80 billion in settlements -- and billions of dollars in fees for private attorneys -- ruling the state’s product-liability law bars allegations that legal products created a public nuisance.
The decision undermines the basis for $650 million in judgments awarded to two Ohio counties in federal court against pharmacy operators Walgreens, Walmart and CVS. It also adds to the list of courts that have rejected the idea of using public nuisance law as an all-purpose method for obtaining funding for government programs to address general harms, whether it is opioid addiction or climate change.
“The most important takeaway from the Ohio Supreme Court’s decision is this is yet another high court that has said these public nuisance lawsuits are not bringing forth viable legal theories,” said Phil Goldberg, a partner with Shook, Hardy & Bacon who co-authored an amicus brief for the Product Liability Advisory Council.
“If you’re a trial court and you’re looking at these liability theories, you need to start paying attention to this growing body of case law.”
The Oklahoma Supreme Court threw out a $485 million judgment against Johnson & Johnson in 2021, as did a federal judge in West Virginia in 2022 and lower courts in Connecticut, California and North Dakota.
An earlier round of public-nuisance lawsuits against the gun industry suffered a similar fate, although that hasn’t deterred private lawyers, some of whom made billions of dollars in fees from the tobacco settlement, from recruiting state and local governments to file public nuisance and consumer-fraud lawsuits against manufacturers of widely used products including gasoline and lead paint.
The Ohio Supreme Court issued its Dec. 10 decision at the request of the U.S. Court of Appeals for the Sixth Circuit, which is considering whether to uphold the 2022 judgment in favor of Lake and Trumbull counties in Ohio. The lawsuit was selected as a bellwether case by U.S. District Judge Dan Aaron Polster to test legal theories in thousands of opioid lawsuits consolidated in his court as multidistrict litigation.
Early on, the defendants sought to have the cases dismissed under the Ohio Product Liability Act, which covers all lawsuits over legal products. The Ohio General Assembly passed comprehensive product liability legislation in 1988 and legislators amended the law in 2005 specifically to override an Ohio Supreme Court decision that allowed certain negligence cases to survive outside the statute.
The legislature stepped in again in 2007 to add “any public nuisance claim” to the definition of “product liability,” to override the Ohio Supreme Court’s endorsement of a public nuisance suit over guns. That seemed to close the door on exactly the sort of lawsuit the counties brought against the opioid industry a decade later. But Judge Polster found a way around this clear language, ruling there was a loophole for lawsuits that weren’t seeking monetary damages.
He then approved $306 million in damages for Lake County and $346 million for Trumbull County, which he called “abatement” in order to fit within the loophole he’d discovered.
The Ohio Supreme Court disagreed with Judge Polster’s reasoning. The 2007 amendment states the definition of product liability “also includes any public nuisance claim or cause of action at common law,” including claims based on “supply, marketing, distribution, promotion, advertising, labeling, or sale.”
“The plain language of the OPLA abrogates product-liability claims, including product-related public-nuisance claims seeking equitable relief,” the court said in an opinion by Justice Joseph Deters. “We are constrained to interpret the statute as written, not according to our own personal policy preferences.”
The Ohio counties, like other government plaintiffs, claimed pharmacies sold opioids despite “red flags” indicating the prescriptions might end up in the wrong hands. They never presented evidence of a specific prescription that was filled illegally, however, relying instead on expert witnesses who claimed opioids were being diverted into illicit markets. That diversion created a public nuisance, the plaintiffs argued.
Judge Polster declared at the beginning of his tenure that he wanted to “do something” about the opioid crisis and wasn’t interested in holding trials to test the merits of the claims. He then issued a string of pro-plaintiff rulings that had the effect of forcing settlements.
The key decision he made, without which many of the cases couldn’t survive, was that product liability law doesn’t apply when the plaintiffs are seeking injunctive relief, or “abatement,” even though that involved billions of dollars in cash payments.
Justices Melody Stewart and Michael Donnelly dissented in part, arguing Judge Polster was right on that point.
The majority opinion acknowledged the immense damage caused by opioid abuse and addiction.
“Creating a solution to this crisis out of whole cloth is, however, beyond this court’s authority,” the court said. “We must yield to the branch of government with the constitutional authority to weigh policy considerations and craft an appropriate remedy. And the General Assembly has spoken, plainly and unambiguously: a public-nuisance claim seeking equitable relief is not that remedy.”
The Ohio court’s reasoning should reverberate elsewhere, said Donald Kochan, a professor at George Mason University’s Antonin Scalia Law School. Many other states have similar product liability laws, passed as a sort of “grand bargain” to allow the orderly resolution of product-based lawsuits without stifling innovation, he said. Most of those laws cover lawsuits based on marketing and labeling, he said.
Private lawyers in search of contingency fees have tried to find creative ways around these laws, including styling suits as public-nuisance or consumer-fraud cases. In climate litigation, for example, they claim oil companies misled consumers about the widely known scientific conclusion that burning fossil fuels can cause global warming.
The Ohio Supreme Court dismissed this sort of effort, however, calling them “product-liability claims disguised as public-nuisance claims.”
“There's all these pivots the plaintiff attorneys do to avoid what the law says,” Kochan said, but climate lawsuits, like the opioid suits, should be considered disguised product liability claims.
“A number of other states should reach similar conclusions,” he said, “otherwise it opens this box for evading a complex but fair statutory scheme.”
In a statement, the plaintiffs’ co-liaison counsel in the national opioid litigation, Peter Weinberger, of the Cleveland-based law firm Spangenberg Shibley & Liber, lamented the decision.
“This ruling will have a devastating impact on communities and their ability to police corporate misconduct,” he said. “We have used public nuisance claims across the country to obtain nearly $60 billion in opioid settlements, including nearly $1 billion in Ohio alone, and the Ohio Supreme Court’s ruling undermines the very legal basis that drove this result.”