Law & the Courts

Conservative AG Patrick Morrisey Can’t Use ‘Public Nuisance’ Laws to Go After Drug Stores

Walgreens pharmacy in Austin, Texas, in 2018. (Mohammad Khursheed/Reuters)
He can still do the right thing and set a great example.

Opioid addiction and abuse has devastated thousands of communities across America since at least 2010 and probably earlier. West Virginia is one of the states most terribly affected.

Those persons or entities who actually are responsible for the opioid crisis must be held accountable, but West Virginia attorney general Patrick Morrisey’s recent lawsuits to join other states — and the heavily Democratic mass-tort plaintiffs’ bar — to recover money from pharmaceutical manufacturers and large pharmacy chains does not do so, and they are inconsistent with Morrisey’s claims of being a conservative.

This summer, Morrisey joined other states and sued Walmart, CVS, Rite-Aid, and Walgreens, alleging violations of the West Virginia Consumer Credit & Protection Act, which says that “unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful,” and that such conduct led to a “public nuisance.”

“Public nuisance” has a specific legal meaning, and the highly regulated business of a pharmacy legally filling a doctor’s prescription is not it. A “public nuisance” is when someone unlawfully interferes with the public’s right to use public land or water (such as a public road, park, or lake), or when someone uses his land to intentionally engage in illegal activity and disturbs the public’s access to or use of nearby land ot water.

The government sues to protect the public’s common right to access and use the land or water, asks the court to enjoin the illegal activity (such as dumping toxic waste or running an illegal gambling ring), and recovers abatement costs from the person or people who actually engaged in the illegal activity. “Public nuisance” does not include selling legal products, and only the person or people unlawfully causing or controlling the illegal activity are responsible.

For example, chemical or playing-card manufacturers are not liable under public nuisance if bad actors misuse their products to create toxic waste or run illegal gambling rings. Similarly, chain pharmacies such as Rite-Aid are not liable when individuals abuse pain medicines or commit crimes to obtain them, or when unethical doctors write pain-medicine prescriptions that they should not.

It seems that the mass-tort plaintiffs’ bar, who are primarily concerned about using state enforcement power for their own financial gain, seduced Morrisey and other state attorneys general with the siren song of huge financial settlements. The fact that Morrisey outsourced previous opioid-related, mass-tort lawsuits to Motley Rice, LLC, which is headquartered in South Carolina and is one of the largest and most infamous mass-tort plaintiffs’ firms in the country, shows this.

Elected state officials such as Morrisey often mistakenly think that, if the mass-tort plaintiffs’ firm succeeds, they will be able to successfully campaign on the monetary recovery and say that they “did something” for their constituents. The mass-tort plaintiff’s firms need a local or state government partner such as Morrisey so that they can sue companies or industries in behalf of an entire community while avoiding traditional class-action rules.

For the mass-tort plaintiffs’ firms, whether or not the targeted companies actually caused harm or are otherwise legally responsible is irrelevant. In fact, the more broadly they cast blame, the more the firms believe that they can get away with not having to prove specific allegations against specific actors.

Morrisey knows that over the decades the heavily Democratic mass-tort plaintiffs’ bar has tried to expand public nuisance and remove traditional property and causation requirements so that they could sue, without limitation, manufacturers and other companies for billions of dollars when someone intentionally misused one of their legally made and legally sold products. (Imagine suing Ford because someone used an F-150 to intentionally run over someone, or claiming that the exhaust from Ford’s vehicles allegedly contributed to global warming).

They do this because they know they cannot win a traditional products liability or intentional torts case. They are, in essence, trying to “shake down” businesses that sold or sell legal products and broke no law for huge financial settlements.

In the 1970s, the mass-tort plaintiffs’ bar tried using improper public-nuisance theories to sue various industries for smog. In the 1980s, they switched to suing plastics manufacturers. Then they tried suing paint and caulking manufacturers.

They then tried, and still are trying, to sue firearms manufacturers, incorrectly claiming that the manufacturers were financially responsible when a criminal misused a gun. These public-nuisance lawsuit abuses were somewhat different in subject matter, but they all sought to create massive collective liability where none existed over a complex issue, even though there were no actual legal or factual grounds to sue the targeted companies or industries.

If Morrisey and the courts allow these flawed public-nuisance lawsuits against the pharmacy companies to go forward, it only will encourage attacks against disfavored or politically unpopular industries such as vaping and e-cigarette companies (addiction, abuse); oil, gas, fracking, and coal companies (global warming); and fast-food and restaurant chains (obesity, addiction). Interestingly, the mass-tort plaintiffs’ firms do not seem to use public-nuisance lawsuits against the entertainment, high-tech, wind power, or solar-power industries, or any other industry that is usually associated with Democrats or liberals.

These legally erroneous public-nuisance lawsuits contravene traditional legal principles, rule of law, and separation of powers. If a state legislature or municipal city council wants to legislatively expand the definition of “public nuisance,” then they can put it to their voters and live with the legal and economic consequences. But legislation through litigation (“litigslation”) is an inappropriate use of the courts and civil-justice system to set public policy.

It is especially disappointing that Morrisey, a conservative, would join the Democrat-friendly public-nuisance mass-tort scheme because he led a groundbreaking, multiyear investigation of the Obama administration’s failure to properly manage the DEA’s National Drug Quota System from 2010 to 2016 and thus the amount of opioids produced. Moreover, the Obama DOJ apparently slow-walked Morrisey’s FOIA requests.

Morrisey still has time to do the right thing, return to the conservative and legal principles on which he campaigned, and keep his promises to West Virginia’s voters. If he does, he will be a great example to other state attorneys general, regardless of party affiliation.

John Shu is a professor and attorney in Newport Beach, California with extensive experience in litigation, corporate, and constitutional law.  He served both President George H.W. Bush (41) and President George W. Bush (43).


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