In mid-December, the Ohio Supreme Court in a 5-2 decisionin the matter of In re Natl. Prescription Opiate Litigation, Slip Opinion No. 2024-Ohio-5744,found that the state’s product liability law does not allow for public nuisance claims to be brought over the opioid crisis, in a challenge to a $650 million verdict won by two counties. Even though the public health crisis has affected many people, the law does not hold that public nuisance can provide an answer for the issue, the court said. The panel had accepted a certified question from the Sixth Circuit in a case brought by Trumbull and Lake Counties, Trumbull County, Ohio et al. v. Purdue Pharma, L.P., et al., Nos. 22-3750 (6th Cir.), which had won the $650 million jury verdict. There, the Ohio Supreme Court was asked to determine whether “common-law public nuisance claims arising from the sale of a product” are precluded by the Ohio Product Liability Act, an Ohio law used for claims such as manufacturing defects, design defects, and failures to give warnings about risks or hazards in products. Plaintiffs argued that the dispensing of opioids lies outside the purview of the OPLA, which has more to do with the design, manufacture, marketing, promotion, and sale of a product. The state’s high court is only the second state court to weigh whether the opioid epidemic can be considered a public nuisance. In 2021, the Oklahoma Supreme Court overturned the first verdict in the opioid litigation.
The ruling also has implications beyond the opioid litigation, as other public nuisance claims have been brought against other issues, such as climate change or PFAS chemicals. For instance, per- and poly- fluoroalkyl substances, commonly known as PFAS, are a group of chemicals that are used for their water-resistant properties and have raised concerns for health risks and environmental impacts. They are also called forever chemicals as they persist in the human body and the environment. To the extent that Ohio Supreme Court interpretation gets traction, perhaps defendants should to seek certification of these questions to state supreme courts. There have been numerous tries to expand public nuisance law to cover what are “essentially” product claims.