A fascinating legal trend has gained momentum in recent years: From Baltimore to Tulsa, government attorneys have been partnering with private law firms, suing big pharmaceutical companies for causing the opioid epidemic, and obtaining massive amounts of money in judgments and settlements.
I’m no fan of Big Pharma, and my family has personally suffered from the mass prescribing of opioids, so I’m inclined to be sympathetic. But putting aside the particulars of the opioid issue, this wave of lawsuits reveals two emerging legal trends that should put us on high alert: the novel misuse of the cause of action called “public nuisance” and the hiring of private attorneys by government agencies.
The Twisting of Public Nuisance Doctrine
A public nuisance was traditionally defined as “an unreasonable interference with a right common to the general public.” For most of Anglo-American legal history, its use was quite limited: a suit for public nuisance could prevent someone from, for example, blocking a public roadway, redirecting a public water source, or releasing noxious fumes into the air. Notice how the examples are consistent with the definition: The public has a right to use roads, share public water, and breathe air.
When those rights are interfered with, a public nuisance lawsuit can stop the interference. And if the public nuisance injures one person, in particular, more than the general public — such as the person who lived next door to the toxic fumes and was made sick by them — the person could also seek
