Since 2014, thousands of cities, counties, states, and Native American tribes have sued the makers of prescription pain-killers on the novel theory that producing these drugs is a public nuisance. How much do you know about these nuisance lawsuits against “Big Pharma”?  Let’s play “Two Truths and a Lie” and find out. 

Can you identify which of the following statements is not true? 

  1. Opioid addiction is a public health crisis and, therefore, a public nuisance. 

  2. Nuisance lawsuits against the makers of prescription medications undermine the separation of powers and the rule of law. 

  3. Forcing “Big Pharma” to pay billions to state and local governments will not solve the drug abuse crisis. 

Let’s take these statements one at a time:

A. LIE!   We are, indeed, in the midst of an opioid crisis — but a public health crisis is not the same thing as a public nuisance. Legally, a public nuisance is an unauthorized and unreasonable interference with a common right that affects the entire community. Typical examples include the blockage of a public roadway or the pollution of a common drinking source. In such cases, public nuisance law allows the government to sue in order to remove the nuisance and restore access. Unlike the pollution of drinking water, which harms everyone in the community, prescription painkillers are an effective means of managing pain for some patients. And while addiction is, of course, a pressing concern, the production of these medicines is authorized by the FDA.  While public health problems often require government intervention, spending taxpayer money to deal with public problems is what government does and cannot be the basis for private liability.

B. TRUTH!   The doctrine of “separation of powers” requires that courts let the political branches and regulatory agencies resolve complicated public policy issues. Public nuisance law does not give courts the right to mandate federal drug control policy or the right to impose new rules on the makers of legal medications. Such regulation by litigation exceeds both the constitutional authority and the institutional competence of courts.

C. TRUTH!  Public nuisance lawsuits against drug manufacturers will not solve the opioid crisis. With more than 1,000 lawyers representing the parties, any settlement will be diluted significantly by the payment of legal fees. The money that does find its way to the government is likely to be used to address current budget deficits or fund political pet projects, rather than treat addiction. This is precisely what happened with the tobacco settlements, in which only a tiny fraction of the billions of dollars that tobacco companies paid to state governments was ever spent on prevention.  Opioid addiction is a complicated public health issue that requires politicians to engage with medical and public health experts, not resort to the courts for a quick windfall.

Bottom line:  When you hear plaintiffs’ lawyers or politicians say they want to make the pharmaceutical industry “pay” for the opioid crisis, remember that public nuisance law should not be used to expand the power of the courts, and forcing the drug companies to pay billions of dollars to the government won’t solve the opioid addiction problem.