MD Supreme Court’s big public nuisance decision will affect more than opioid cases

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Over the course of two days in March, Maryland joined the ranks of states whose highest courts have restricted how public nuisance claims can be used to address widespread harms.

The decisions had swift consequences for the city of Baltimore‘s opioid litigation, which relied on public nuisance claims to hold drug companies accountable for an addiction and overdose crisis sparked by easy access to legal prescription painkillers.

But the Maryland Supreme Court rulings will also have repercussions for a broader range of lawsuits, including some that are part of Baltimore’s high-profile affirmative litigation approach.

“It’s definitely been highly injurious to the city’s strategy,” said Bruce Poole, a Hagerstown attorney who assisted with opioid lawsuits in several Western Maryland communities.

Through a spokesperson, the city’s Law Department declined an interview request.

The Maryland Supreme Court’s public nuisance decisions have already bled into another affirmative litigation suit. PepsiCo, Coca-Cola and Frito-Lay are asking a Baltimore judge to dismiss the city’s lawsuit against the companies over litter and pollution caused by single-use plastic products. That request is still pending.

“Maryland law does not allow the type of sweeping public nuisance claims challenging the misuse of lawful products that (the city) has brought here,” the companies’ attorneys wrote in a filing last month. “The Supreme Court has now confirmed the same.”

Another of the city’s lawsuits, this one against cigarette companies to target littering, survived a motion to dismiss last year but relies in part on a public nuisance claim.

Andre Davis, a former federal judge and city solicitor for Baltimore, said the new Maryland Supreme Court rulings don’t entirely foreclose the use of public nuisance claims.

“I don’t think it goes that far yet, but it’s going to have to be a very careful case-by-case analysis of whether a public nuisance case will be available when the city seeks to protect the citizens from various kinds of harms,” he said.

The Maryland Supreme Court’s moves arrived within a day of each other: first, a decision in Express Scripts, Inc., et al. v. Anne Arundel County, Maryland, an opioid case, and then in a group of consolidated cases against fossil fuel companies over the harms caused by greenhouse gas emissions. 

In both cases, the justices found that Maryland had not extended public nuisance doctrine to allow local governments to pursue damages for harmful conduct. They also declined to expand the doctrine in both cases because of the complex webs of regulation and law that govern both drug dispensing and air emissions.

The decisions were blunt: “The notion that a local government such as Baltimore, Annapolis, or Anne Arundel County may pursue state law nuisance claims against the (fossil fuel companies) … is so far afield from any area of traditional state or local responsibility that it cannot be seriously contemplated,” Justice Brynja M. Booth wrote in the emissions case.

A month later, the high court vacated the $152 million verdict that Baltimore won when it took its opioid case to trial. The city can keep the more than $400 million in settlements that it received from drug companies that chose not to go to trial, but the case against McKesson and AmerisourceBergen, the two opioid distributors that declined to settle, is all but “dead in the water,” Davis said.

Baltimore’s strategy in the opioid case was still successful, said Kathleen Hoke, a professor at the University of Maryland Francis King Carey School of Law. The city won more in settlements than it would have received by entering into the large “global” settlements with drug companies that most states and local jurisdictions joined.

The idea of a public nuisance originates in English common law and is not defined in statute, Hoke said. “We understand the nature and breadth of it by court decision,” she said. “That’s why you see vastly different outcomes across the country.”

High courts in Oklahoma, Ohio and Maine have declined to expand public nuisance claims to cover the mishandling of prescription opioids. Other courts have adopted broader definitions. 

Taken together, the new Maryland decisions place us on the “narrow end of the spectrum when it comes to what can constitute a common law claim of public nuisance,” Hoke said.

“One takeaway from these is that it’s going to be difficult if not impossible to make public nuisance claims where there isn’t an undercurrent of chronic legal violations,” she continued.

More traditional uses of public nuisance, such as seeking an injunction to block a problem liquor store from operating, are likely still available after the Supreme Court’s rulings. Baltimore is also arguing in its single-use plastics lawsuit that bringing a public nuisance case to halt damage to shared public resources, like the environment, is still permitted.

The Maryland Supreme Court decisions “reaffirm the viability of traditional public nuisance claims — particularly those involving environmental contamination of public resources,” the city’s lawyers wrote. “Baltimore’s allegations fit squarely within that tradition.”

Seeking damages for broad harms caused by lawful products will nonetheless be much more difficult now, Poole said.

“The next time something is causing a lot of harm to the city and the citizens, if that product is deemed legal, too bad,” he said.

One option could restore local governments’ ability to sue over these types of harms: legislation. State lawmakers could create a public nuisance statute to cover some of the legal ground that the state Supreme Court closed off.

“There’s no reason you couldn’t create that, and it would say, ‘Here’s what constitutes a public nuisance,’” Poole said. “That would all be perfectly permissible, and that would get around the reliance on common law, which was relied on until now and which the Supreme Court said is not the proper vehicle.”

Madeleine O’Neill is a freelance reporter based in Baltimore.