A TALE OF TWO COURTS: OHIO COURT DRASTICALLY EXPANDS PUBLIC NUISANCE LAW
In a year when the ATRF praises the Oklahoma Supreme Court for soundly rejecting an expansive view of public nuisance law, a recent verdict in an Ohio federal court serves as a stark contrast of what happens when an activist judge oversees litigation.
In November 2021, a jury in the U.S. District Court of the Northern District of Ohio found three pharmacies – CVS, Walgreens and Walmart, liable for creating a public nuisance by filling valid opioid prescriptions. The case was brought by two counties in Ohio as part of the national multi-district litigation (MDL) being overseen by Judge Dan Polster. The court adopted the very same expansive view of public nuisance law that the Oklahoma Supreme Court found to be dangerous and an inappropriate application of the law. Historically, public nuisance law involved instances in which a property owner’s activities unreasonably interfered in a right that is common to the public, usually affecting land use. Unlike Judge Polster, the Oklahoma Supreme Court recognized that the opioid crisis is one to be solved by the legislative and executive branches of government and not the courts.
The decision drastically distorts public nuisance and product liability law. The companies were found liable for selling a legal and highly regulated product over which they had no control of the manufacture or labeling – and is heavily regulated. While technically a jury decided the case, it was Judge Polster’s overall approach to the litigation that allowed such a dramatic expansion of the law to occur. As the Wall Street Journal points out, Judge Polster will use this verdict to hold the companies “hostage to a settlement.”
The MDL process he oversees is intended to speed the process for courts to handle complex lawsuits that involve similar conduct; however, it should not be to the disadvantage of one party or another. The fact that Judge Polster began the process with a statement suggesting that he and the judiciary would “solve” the opioid crisis, and he also stated on the record that “no one has done enough,” in this regard – plainly suggest that he would drive the process to achieve a desired outcome.
Judge Polster’s management of the case is part of a broader and concerning trend in MDL litigation. As two law professors noted in a recent article, “MDL’s gravitational pull over thousands of cases demolishes all of the normal expectations of individual process and federalism.”
Right from the outset, Polster pushed the parties for a settlement, and in doing so, he plainly demonstrated where he thought fault should be allocated. In open court he went so far as to state that defendants are “responsible for having created the opioid crisis” and “must now take some responsibility for fixing it.”
Judge Polster took additional steps that led defendants to conclude that he was attempting to “direct” the plaintiffs’ trial strategy when he quickly scheduled a new “bellwether” trial after a decision of the U.S. Court of Appeals for the 6th Circuit. The defendants stated in a subsequent motion, “No party asked to have any case restructured… Rather, without warning and without considering the views of the litigants, the district court judge assumed control of the plaintiffs’ cases.”
This followed a strongly worded Writ of Mandamus the 6th Circuit issued in April of 2020, finding Polster disregarded the Federal Rules of Civil Procedure in his management of the litigation. Writing for the court, Judge Raymond Kethledge stated, “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance.”
The 6th Circuit further rebuked Polster, calling his decision to allow plaintiffs in the litigation to amend complaints 19 months post-deadline “plainly incorrect as a matter of law,” which “manifests a persistent disregard of the federal rules.”
In the end, Judge Polster got what he wanted in this trial. He most likely will continue to push the par- ties toward settling, in hopes that it happens before the 6th Circuit Court of Appeals can again weigh in on an appeal.