[2] Restatement (Second) of Torts § 821B(1) (Am. L. Inst. 1979).[3] Kristen S. Jones, The Opioid Epidemic: Product Liability or One Hell of a Nuisance?, 39 Miss. C. L. Rev. 32, 35–36 (2021); City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1117 (Ill. 2004).[4] Donald G. Gifford, Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines, 62 S.C.L. Rev. 201, 213–14 (2010).

n a public nuisance theory of liability. And most recently, in January 2020, the MDL judge denied the distributor defendants’ motion for summary judgment, finding that the plaintiffs had set forth evidence that the distributor defendants’ monitoring systems were not reliable. Johnson & Johnson has already announced its intention to appeal the Oklahoma court’s ruling.To learn more about this issue, stay tuned for our second post, which will analyze the challenges that public nuisance law presents for the current opioid litigation.[1] Restatement (Second) of Torts § 821B (1979).[2]State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 455 (R.I. 2008); People v. ConAgra Grocery Prod. Co., 17 Cal. App. 5th 51, 109 (2017).[3]In re Nat’l Prescription Opiate Litig., No. 1:17-MD-02804, 2019 WL 2468267, at *30-32 (N.D. Ohio Apr. 1, 2019), report and recommendation adopted in part, rejected in part, No. 1:17-MD-2804, 2019 WL 3737023 (N.D. Ohio June 13, 2019).[4]City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1114-15 (Ill. 2004).[5]See, e.g., City of Manchester v. Nat’l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986); Warren Consol. Schs. v. W.R. Grace & Co., 518 N.W.2d 508, 511 (Mich. Ct. App. 1994)[6]Tioga Pub. Sch. Dist. No. 15 v. U.S. Gypsum Co., 984 F.2d 915, 920-22 (8th Cir. 1993).[7]Beretta U.S.A. Corp., 821 N.E.2d at 1107-08.[8]In re Lead Paint Litig., 924 A.2d 484, 494 (N.J. 2007)[9]Lead Indus. Ass’n, 951 A.2d at 447-48.[10]ConAgra Grocery Prods., 17 Cal. App. 5th at 163-64.[11]Id. at 101-02, 104.[12]Id. at 111-12.

g to “an indivisible resource shared by the public at large.” Id. The court agreed with the pharmacy defendants, holding that the state had not “described a public nuisance,” id. at 4, because it had not “identified a public right that has been violated,” id. at 6. Nor did the court find a “sufficient nexus” between the “alleged consequences to public health” and the private individualized matter of using legal prescription medication. Id. at 7.Notably, the court looked beyond Alaskan law for guidance. For instance, the court observed that “no state statute defines any action similar to the distribution of a lawful substance as a nuisance.” Id. at 4. The court also noted that the alleged conduct “differ[ed] greatly” from common examples of a public nuisance in the Restatement of Torts which were not “even remotely similar to the act of distributing lawful medication.” Id. at 6. The court also cited the reasoning of the Illinois Supreme Court in City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004), “that the threat of misuse of an otherwise legal product is not a violation of a public right even if there has been damage to the public.” Id. at 7. Finally, the court explained that the logical conclusion of the state’s theory would transform “any claim that has negative impacts on public health” into a public nuisance—cautioning that this was “a bridge too far.” Id. at 8.Takeaway: An Alaskan state court dismissed, as a matter of law, allegations that pharmacies created a public nuisance by selling opioids. This is an important data point as courts across the country continue to confront similar theories of liability that stretch the traditional notions of “public nuisance” claims.___________________________________Plaintiffs in Consolidated Complaint Bound by Bellwether Judgments in the Seventh CircuitPlaintiff tort lawyers often aggregate the claims of many individual plaintiffs into one large, consolidated complaint. This may be done to seek litigation leverage, avoid paying fil

ls’ abilities to address genuine public nuisances, while still providing both the regulated community and those charged with regulatory oversight with a welcome measure of predictability and fairness.Both CSHB 1372 and SB 1034 have received committee hearings, with CSHB 1372 sent to House Calendars on April 14 for a potential floor vote. Businesses should make their voices heard while there is still time to influence the proposed legislation, and consider encouraging the broader regulated community to do the same. --- Restatement (Second) of Torts § 821C(1) (“In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.”).State of Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956, 973 (E.D. Tex. 1997) (rejecting the state of Texas's public nuisance theory).See, e.g., City of Chicago v. Beretta, 821 N.E.2d 1099, 1121 (Ill. 2004) (declining to “impose public nuisance liability for the sale of a [lawful] product”); State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 456 (R.I. 2008) (holding “[t]he law of public nuisance never before has been applied to products, however harmful.”); In re Lead Paint Litigation, 924 A.2d 484, 505 (N.J. 2007) (ruling “were we to permit these complaints to proceed, we would stretch the concept of public nuisance far beyond recognition and would create a new and entirely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance”); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001) (rejecting the contention that gun manufacturers have a general duty to lessen the risk of illegal gun trafficking because they have the power to restrict marketing and product distribution).People v. ConAgra Grocery Prods. Co., 227 Cal. Rptr. 3d 499, 514 (Ct.App. 2017), reh’g denied (Dec. 6, 2017), reviewed denied (Feb. 14, 2018), cert. denied sub nom.

Most states that have considered similar attempts by cities and counties to recover the costs of providing fire, police, and other services have likewise concluded that such claims should not be allowed as a matter of public policy, including California, Delaware, the District of Columbia, Florida, Georgia, Illinois, Louisiana, Massachusetts, New York, New Jersey, Ohio, Pennsylvania, Virginia, and Wisconsin. See County of San Luis Obispo v. Abalone Alliance, 178 Cal. App. 3d 848 (Cal. App. 1986); Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969 (9th Cir. 2008) (applying California law); Baker v. Smith & Wesson Corp., 2002 WL 31741522 (Del. Super. Nov. 27, 2002); District of Columbia v. Air Florida, Inc., 750 F.2d 1077 (D.C. Cir. 1984) (applying District of Columbia law); Penelas v. Arms Technology, Inc., 1999 WL 1204353 (Fla. Cir. Ct. Dec. 13, 1999); Walker County v. Tri-State Crematory, 643 S.E.2d 324 (Ga. App. 2007); City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004); Mayor & Council of City of Morgan City v. Jesse J. Fontenot, Inc., 460 So. 2d 685 (La. Ct. App. 1984); Town of Freetown v. New Bedford Wholesale Tire, Inc., 384 Mass. 60 (1981); Koch v. Consol. Edison Co. of New York, 468 N.E. 2d 1 (N.Y. 1984); County of Erie v. Colgan Air, Inc., 711 F.3d 147 (2d Cir. 2013) (applying New York Law); City of Bridgeton v. B. P. Oil, Inc., 369 A.2d 49 (N.J. Sup Ct. 1976); In re Lead Paint Litig., 924 A.2d 484, 502 (N.J. 2007); Board of Commissioners v. Nuclear Assurance Corp., 588 F. Supp. 856 (N.D. Ohio 1984) (applying Ohio law); City of Pittsburgh v. Equitable Gas Co., 512 A.2d 83 (Penn. 1986); City of Philadelphia v. Beretta U.S.A., Corp., 126 F. Supp. 2d 882 (E.D. Pa. 2000) (applying Pennsylvania law); Bd.

Courts generally have rejected nuisance claims against the firearms industry due to the lack of a public right to be “free from unreasonable jeopardy to health, welfare and safety . . . caused by the presence of illegal weapons.” City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1114 (Ill. 2004); accord City of Philadelphia v. Beretta U.S.A., Corp., 126 F. Supp. 2d 882, 909, 911 (E.D. Pa. 2000), aff’d, 277 F.3d 415 (3d Cir. 2002). Pharmaceutical defendants may assert that the new nuisance actions are on similar footing, because theyallege harm due to illegal, not legal, use of the products.