INTRODUCTION AND SUMMARY OF ARGUMENT

At early English common law and in its current form, public nuisance has comfortably covered situations like that alleged here: injury to the common good caused by unreasonably harmful product sales. Amici write to share their informed views—based on legal scholarship and teaching experience—about the historical and current scope of the wrongful conduct and conditions covered by public nuisance actions, the complementary relationship between public nuisance suits and other forms of governmental intervention, and the wide range of equitable remedies available.

Going back centuries, the common law recognized public nuisance claims based on interference with the public welfare, not just public property. The type of claim here is thus not a novel modern invention, but fully consistent with historical authorities, including a seventeenth-century treatise recognizing claims against “apothecaries” for unsafe products. It also falls comfortably within the scope of the modern tort as applied in Ohio, as Judge Polster correctly held.

Contrary to the arguments raised by appellants’ amici, this consensus view risks no opening of litigation floodgates, as the scope of public nuisance doctrine and the criterion of unreasonableness appropriately cabin liability. With respect to claims predicated on the sale of products, the requirement that the product result in an unreasonable condition which interferes with a right common to the public also keeps the floodgates closed. As with other torts, an unreasonableness standard recognizes that duties can evolve, and that conduct which is reasonable at the outset can become unreasonable as circumstances change.

The wide-ranging harms to public health and welfare resulting from the opioid epidemic have been widely chronicled, Kendrick, supra, at 753-54, and appear to be undisputed here. The jury’s finding that the pharmacy defendants here shared responsibility for “unreasonable interference” with public health and safety is fully consistent with black letter tort principles and does not threaten unbounded liability in future cases.

Nor does recognizing the validity of public nuisance doctrine for the wrongful conduct here pose a risk of irreconcilable conflict with regulatory prerogatives. Rather, state courts—including Ohio courts—have continued to give life to public nuisance claims because they are an important complement to regulatory efforts. Breach of regulatory duties, like those the jury found here, can constitute an absolute public nuisance under Ohio law. What’s more, when and if conflict arises with other regulatory approaches, it can be mediated by doctrines that are designed precisely for that purpose. The district court correctly determined that no such doctrine foreclosed liability here.

Finally, the abatement remedy awarded here falls well within the heartland of public nuisance remedies. The traditional remedy for public nuisance is abatement— that is, the prospective remediation of the offending condition. Because abatement focuses upon prospective relief rather than redress of past injuries, it is distinct from damages. Abatement is the traditional remedy for public nuisance because public nuisances result in ongoing wrongful conditions which must be rectified, as opposed to money damages which repair past harms. Nor is this distinction blurred by the fact that the abatement process often requires defendants to expend funds. Rather, as correctly noted by the district court, requiring defendants to contribute funds for abatement is an established remedial approach, with its specific features subject to the court’s broad discretion. In this case, appellants did not submit a serious abatement plan for the district court’s consideration, and the plan the court ultimately crafted fell within its discretion.

In sum, in amici’s view, the district court’s careful analysis of public nuisance law is consistent with the historical and contemporary scope of the claim, and the district court’s thoughtfully tailored abatement remedy falls well within the historic contours and current broad scope of equitable relief allowed for public nuisance claims.

Introduction and Summary of Argument

Public nuisance law, from early English common law to its current form, has consistently covered harm to the public good, including issues like unreasonably harmful product sales. Legal experts are providing their informed views on the historical and current scope of this law, its relationship with government regulations, and the range of remedies available. This type of claim is not new; it aligns with centuries of legal history, including cases against "apothecaries" for unsafe products in the 17th century. It also fits within Ohio's modern tort law, as correctly determined by the lower court.

Concerns about an excessive increase in lawsuits are not warranted. Public nuisance doctrine has clear boundaries, and the "unreasonableness" standard helps limit liability. For claims based on product sales, liability requires that the product create an unreasonable condition that interferes with a public right. The concept of unreasonableness can evolve as circumstances change. The significant harm from the opioid epidemic is widely documented and undisputed. The jury's finding that pharmacy defendants contributed to an "unreasonable interference" with public health and safety is consistent with fundamental tort principles and does not create unlimited liability for future cases.

Public nuisance law does not conflict with regulatory systems; instead, it complements them. State courts, including those in Ohio, continue to use public nuisance claims because they are an important tool alongside regulatory efforts. A breach of regulatory duties, as found by the jury in this case, can be considered an absolute public nuisance under Ohio law. If conflicts with other regulatory approaches arise, specific legal doctrines are designed to resolve them, and no such conflict prevented liability here. Furthermore, the abatement remedy awarded is a traditional response to public nuisance. Abatement focuses on fixing an ongoing problem for the future, rather than compensating for past harm, which distinguishes it from damages. While abatement often requires defendants to spend money, this is a recognized method for addressing persistent harmful conditions. The court's abatement plan was within its authority, particularly given that the appellants did not propose a serious alternative plan.

In summary, the court's analysis of public nuisance law aligns with both its historical and current application. The carefully designed abatement remedy also fits within the traditional and broad scope of equitable solutions available for public nuisance claims.

INTRODUCTION AND SUMMARY OF ARGUMENT

Public nuisance law, both historically and in its current form, has consistently addressed situations where the sale of unreasonably harmful products causes damage to the common good. This legal principle encompasses the historical and present scope of wrongful actions and conditions covered by public nuisance lawsuits, the way these suits work with other government interventions, and the range of equitable remedies available.

For centuries, common law recognized public nuisance claims based on interference with public welfare, not just damage to public property. This type of claim is not a new invention but aligns with historical legal documents, including a 17th-century text that allowed claims against "apothecaries" for unsafe products. The current application of this tort in Ohio also comfortably includes such claims.

Concerns about an explosion of litigation are unfounded. The scope of public nuisance doctrine and the requirement of unreasonableness appropriately limit liability. For claims related to product sales, liability is further restricted by the need for the product to create an unreasonable condition that interferes with a right common to the public. As with other torts, the standard of unreasonableness acknowledges that duties can change, and behavior initially deemed reasonable may become unreasonable as circumstances evolve. The widespread harm to public health and welfare from the opioid epidemic is well-documented. The jury’s finding that pharmacy defendants shared responsibility for "unreasonable interference" with public health and safety is consistent with established tort principles and does not threaten limitless liability in future cases.

Furthermore, applying public nuisance doctrine to wrongful conduct does not create an unavoidable conflict with regulatory authorities. Instead, state courts, including those in Ohio, continue to uphold public nuisance claims because they significantly complement existing regulatory efforts. Under Ohio law, a breach of regulatory duties, such as those found by the jury in this case, can constitute an absolute public nuisance. If conflicts with other regulatory approaches arise, specific legal doctrines are in place to mediate them. The district court correctly determined that no such doctrine prevented liability in this situation.

Finally, the abatement remedy awarded in this case falls squarely within the traditional scope of public nuisance remedies. Abatement is the primary remedy for public nuisance, focusing on the future correction of the harmful condition. This differs from monetary damages, which compensate for past injuries. Abatement is appropriate because public nuisances create ongoing wrongful conditions that require resolution. The fact that abatement often requires defendants to spend money does not blur this distinction; courts have broad discretion to require defendants to contribute funds for abatement as an established remedial approach. In this specific case, the appellants did not propose a serious abatement plan, and the plan the court ultimately developed was within its discretionary powers.

INTRODUCTION AND SUMMARY OF ARGUMENT

Public nuisance law, both historically and today, addresses situations where the common good is harmed by the unreasonable sale of harmful products. Legal scholars and teachers have provided their insights into the past and present scope of actions covered by public nuisance, how these lawsuits work alongside other government actions, and the wide range of available solutions. Claims of this type are not new; they align with centuries-old legal principles, including a 17th-century legal text that addressed claims against pharmacists for unsafe products. Such claims also fit well within modern public nuisance law as applied in Ohio.

Contrary to some arguments, this understanding of public nuisance does not risk an overload of lawsuits. The limits of public nuisance law and the standard of "unreasonableness" properly contain liability. When claims involve product sales, the requirement that a product create an unreasonable condition that interferes with a public right also helps prevent too many cases. Like other areas of law, the standard of unreasonableness recognizes that duties can change, and behavior that was once acceptable might become unacceptable as circumstances evolve. The extensive damage to public health and welfare caused by the opioid crisis is widely documented. A jury's finding that pharmacy defendants shared responsibility for "unreasonable interference" with public health and safety is consistent with basic legal principles and does not create unlimited future liability.

Recognizing public nuisance law for such wrongful conduct also does not necessarily conflict with existing regulations. Instead, courts, including those in Ohio, continue to uphold public nuisance claims because they serve as an important complement to regulatory efforts. Under Ohio law, failing to meet regulatory duties, like those the jury identified, can be considered an absolute public nuisance. If conflicts do arise with other regulatory approaches, they can be managed by specific legal doctrines designed for that purpose. The court correctly determined that no such doctrine prevented liability in this case.

Finally, the "abatement" remedy awarded in this case aligns well with traditional public nuisance solutions. Abatement, which focuses on fixing an ongoing problem in the future rather than compensating for past harm, is the standard remedy for public nuisance. This distinction remains even if the abatement process requires defendants to spend money. Requiring defendants to contribute funds for abatement is a recognized approach, and its specific details are left to the court's broad discretion. In this case, the defendants did not propose a serious abatement plan, and the plan ultimately created by the court was within its authority.

In summary, the court's careful analysis of public nuisance law is consistent with both the historical and current understanding of such claims. The court's thoughtfully designed abatement remedy also falls within the traditional and broad scope of fair solutions allowed for public nuisance cases.

Summary of Argument

For many years, public nuisance laws have covered situations where products cause too much harm to the public good. Experts who understand these laws are sharing their informed opinions. They explain how public nuisance actions have worked over time, how they fit with other ways the government steps in to help, and the different ways these problems can be fixed. For hundreds of years, these laws have said that a public nuisance is something that harms the well-being of the public, not just public land. So, this kind of legal problem is not new. It is like old cases where pharmacists were sued for selling unsafe items. The current case fits Ohio's public nuisance laws today, as a judge has already confirmed.

Some people worry that this view will lead to too many lawsuits. However, the rules for public nuisance and the requirement that an action be "unreasonable" limit who can be held responsible. For products, a company is only responsible if its product creates a problem that is too harmful and affects the rights of the public. What is considered "unreasonable" can change as situations change. The many ways the opioid problem has hurt people's health and safety are well known and are not disputed in this case. A group of citizens (the jury) decided that the pharmacies were partly to blame for causing "unreasonable harm" to public health and safety. This decision fits with basic legal ideas and will not cause endless lawsuits in the future.

Applying public nuisance laws here does not mean it will cause problems with government rules. In fact, courts, including those in Ohio, continue to use public nuisance claims because they work well with other government efforts to keep things safe. When companies break rules, as the jury found here, it can be a clear public nuisance under Ohio law. If there are ever problems with other government rules, there are ways to work them out. The court in this case decided that nothing stopped the pharmacies from being held responsible.

The way the problem will be fixed here, called "abatement," is a common solution for public nuisance. Abatement means making changes to stop the problem from continuing in the future. It is not about paying money for past harms. Public nuisance needs abatement because the problems are still happening and must be stopped. Even though companies often have to pay money for abatement, it is still different from paying for past damages. The court said that making companies pay for this kind of fix is a common way to solve problems. The court has a lot of power to decide how this will work. In this case, the companies did not offer a good plan to fix the problem, so the court created one, which was within its rights.

In short, the court's careful study of public nuisance law fits with how it has been used in the past and how it is used now. The court's plan to fix the problem also fits what is allowed for public nuisance cases.