At the end of 2021, I wrote a legal memorandum, “Using Public Nuisance Law to ‘Solve’ the Opioid Crisis Sets a Dangerous Precedent.” In it, I wrote about some flaws with, and the risks of expanding the use of, public nuisance theories of liability that were and are being pursued to attack the opioid problem.
As I stated in that article: “Although the precise definition may vary from state to state, the term ‘public nuisance’ generally refers to unreasonable conduct, such as discharging sewage or other toxic effluence, housing diseased animals, or improperly storing explosives in a public area, that interferes with the health, safety, comfort, and peace of the public or other rights held in common by all members of the community.”
While opioid addiction is obviously a serious societal problem, I pointed out how public nuisance theories could easily be adapted and used, as indeed they already have been, “as an ideological weapon against industries related to climate change and firearms,” among others.
This is so because creative trial lawyers, such those I mention below, “have urged judges to expand the definition from conduct that interferes with a right common to all members of the public to conduct that ends up harming a large number of private individuals: in other words, from a tort that is collective in nature to one that is individual in nature.”
I also discussed how the “end goal” of the people pushing these public nuisance cases seems to be “to pad the pockets of trial lawyers and cause manufacturers to stop making and distributors to stop selling legal products that are utilized legitimately by millions of law-abiding people.”
In recent days, we’ve been given a reminder of how dangerous public nuisance claims can be, although some conservatives are starting to push back on the trial lawyers who are promoting these claims and, not coincidentally, undermining conservative priorities.
First, a consumer protection group called the Alliance For Consumers wrote a 100-page consumer protection report, citing my paper and others, alongside a letter warning Republican governors about the attempt by left-leaning lawyers to use public nuisance lawsuits as a backdoor way to outlaw guns and otherwise push a liberal agenda through the courts to achieve goals they could not achieve through the legislative process.
Second, The Wall Street Journal broke the news that new Iowa Attorney General Brenna Bird and new Kansas Attorney General Kris Kobach had both announced the termination of state contracts with Morgan & Morgan, a megafirm with more than 800 trial lawyers.
Morgan & Morgan serves as a salient example of the alliance of left-wing trial lawyers and those pushing public nuisance litigation.
According to The Wall Street Journal, Morgan & Morgan—which sends 99% of its political donations to Democrats—played a major role in the push to expand public nuisance claims in response to the opioid crisis, representing cities and states, and serving on a key steering committee for one of the largest federal opioid public nuisance cases.
For those of us who have been warning about the risks of expanding public nuisance theories of liability, the decisions by Bird and Kobach to terminate using the services of Morgan & Morgan is welcome news and demonstrates intestinal fortitude. Although both new in their positions, Bird and Kobach have clearly grasped the implications of simply going along to get along.
Perhaps they—along with Montana Attorney General Austin Knudsen, who terminated use of the services of megafirm Motley Rice in 2021—can persuade some of their more recalcitrant peers in other states to rethink how public nuisance laws can be used to advance a left-wing agenda and to reconsider their relationship with liberal trial lawyers who pocket exorbitant fees—which they often then use to try to defeat the very people who hired them—reaping a disproportionate share of any funds that should rightfully go to those who have been harmed.
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Author: John G. Malcolm
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