Key Takeaways

A new decision from the Ohio Supreme Court finds that opioid-related public nuisance claims against retail pharmacies chains are barred by state law. This decision will have most immediate effects in Ohio, where the large verdict against the several retail pharmacies is unlikely to stand. Although primarily based on specific statutory language, the decision by the Ohio Supreme Court may influence other courts considering whether public nuisance claims are viable with respect to opioid claims and numerous other public nuisance tort claims brought by plaintiffs under similar theories.

In a decision that is likely to have widespread ramifications, in December the Supreme Court of Ohio held that Ohio law prohibits county plaintiffs from claiming that three retail pharmacies (the “Retail Pharmacies”) caused a public nuisance by selling opioids. The Supreme Court reached this decision in answer to a certified question from the Sixth Circuit, which was addressing an appeal by the Retail Pharmacies of a $650 million judgment against them.

Plaintiffs in the underlying litigation had argued that opioid manufacturers, distributors, and pharmacies and retailers “mislead medical professionals into prescribing, and millions of Americans into taking, and often becoming addicted to, opiates.” In re Nat’l Prescription Opiate Litig., 976 F.3d 664, 667 (6th Cir. 2020). As to the Retail Pharmacies, plaintiffs alleged that they had caused a public nuisance by filling opioid prescriptions “without controls in place to stop the distribution of those that were illicitly prescribed.” In re Nat’l Prescription Opiate Litig., 82 F. 4th 455, 457 (6th Cir. 2023).

The Retail Pharmacies appealed based on the Ohio Product Liability Act, R.C. 2307.71 et seq. (“OPLA”). The OPLA states that it is “intended to abrogate all common law product-liability claims or causes of action.” R.C. 2307.71(B). And the Retail Pharmacies argued that this abrogation extends to public-nuisance claims.

In reaching its decision, the Supreme Court analyzed the text of the OPLA. In 2006, Ohio had added a new paragraph on public nuisance claims, stating: “Product liability claim” also includes any public nuisance claim or cause of action at common law in which it is alleged that the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling, or sale of a product unreasonably interferes with a right common to the general public. R.C. 2307.71(A)(13). The plaintiff counties argued that “also includes” was intended to provide an example of a claim within the existing definition. In re Nat’l Prescription Opiate Litig., 2024 WL 5049302, at *4 (S. Ct. Ohio, Dec. 10, 2024). The Retail Pharmacies argued that the language expanded the definition of “product liability claim.” Id. The Supreme Court explained that the Counties’ understanding “read[s] ‘also’ out of the statute.” Id. As a result, the Court concluded that “[t]he plain language of the OPLA abrogates product liability claims, including product-related public-nuisance claims seeking equitable relief.” Id. at *7.

Most states have public nuisance laws; the highest courts of two states have now rejected application of those laws to allegations that defendants fueled the opioid crisis. See State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 731 (S. Ct. Okla. 2021) (holding that extension of public-nuisance claims to those manufacturing legal products was untenable). Other states may follow suit. In West Virginia, the Fourth Circuit certified a similar question to the West Virginia Supreme Court of Appeals under West Virginia common law. City of Huntington, W. Va. V. Amerisourcebergen Drug Corp. et al., 96 F. 4th 642, 644 (2024). A decision on that question is expected in the coming year.