Legal opioid distribution isn’t public nuisance, MD Supreme Court rules

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The Maryland Supreme Court ruled Monday that the lawful distribution of opioids does not count as a public nuisance, a decision that could limit local governments’ ability to collect damages from Big Pharma companies related to the opioid epidemic.

The court ruled that Anne Arundel County can’t use the common-law doctrine of public nuisance to hold pharmacy benefit managers and drug distributors accountable for their role in the proliferation of opioids, which led to the deaths of thousands in the Baltimore area in the past decade.

“We decline to recognize a public right to be free from the adverse effects associated with a lawful product being diverted, misused, or abused,” Justice Brynja Booth wrote in the Monday opinion.

To do so, she continued, “would permit nuisance liability to be imposed on an endless list of manufacturers, distributors, and retailers of manufactured products that are intended to be used lawfully, when such products are misused and cause injury.”

The decision could have major implications for Baltimore City’s opioid litigation, which was largely based on public nuisance claims.

The city last year won a $266 million jury verdict against McKesson and Cencora, but the judge cut that down to $152 million. The city accepted the deal but appealed the judge’s decision to the state’s high court. Baltimore also won hundreds of millions in settlements from other pharmaceutical giants, which will not be affected by the decision.

Anne Arundel County sued a group of pharmacies and pharmacy benefit managers in federal court in January 2024. About a year later, the case was referred to the Maryland Supreme Court to resolve two questions related to public nuisance law. The court heard arguments in September. The federal case has not been updated since the Monday decision.

Public nuisance is a vague term generally defined as conduct that interferes with public health, safety or other rights of the public. Booth noted that it is “an understatement to say that public nuisance is difficult to define.” Definitions vary by state, and the penalties can be either criminal or civil; it is civil in Maryland.

“At bottom, we hold that our common law of public nuisance is neither as limited as the Defendants suggest, nor is it as expansive as the County asserts,” Booth wrote.

“Complex societal problems are best suited for the Legislature, and judicial restraint is the appropriate principle to apply here.”

But although Booth wrote that the court’s role should be limited, two of her colleagues wrote that the majority went too far in defining a “public right.”

Justice Peter Killough wrote a separate concurrence, agreeing with the majority’s conclusion but arguing it was “too broad” in limiting the scope of public nuisance law.

“There is daylight between ‘this complaint fails to state a public nuisance claim’ and ‘this category of conduct can never be a public nuisance,’” he wrote.

“I agree that expansion of public nuisance should be gradual, principled, and sensitive to the institutional limits of the judiciary,” Killough wrote. “But the Majority’s framing implies that any development of the doctrine is suspect — a position that, if applied consistently, would have frozen the common law centuries ago.”

Justice Shirley Watts concurred in part and dissented in part, writing that the court had exceeded its role in defining the boundaries of public nuisance law. She agreed with the decision that Anne Arundel County hadn’t adequately alleged a public nuisance but accused the majority of “roving into the very area that it expressly and prudently determined should be left to the General Assembly.”

“Given the Majority’s decision to defer to the General Assembly regarding whether to expand Maryland’s public nuisance law, reaching the merits of the County’s complaint is premature,” Watts wrote.

Watts wrote that the court historically had defined a public nuisance as “an injury to the public at large or to all persons who come into contact with it,” not as an interference with a “common public right.” She wrote that the court shouldn’t have defined a “common public right.”

“[B]y defining a common public right and concluding that the County’s allegations fell short,” she wrote, “the Majority does precisely what judicial restraint cautions against: it alters the common law in an area where legislation from the General Assembly is more appropriate.”