An intriguing legal trend has emerged in recent years: From Baltimore to Tulsa, government attorneys have been collaborating with private law firms to sue major pharmaceutical corporations over their roles in the opioid crisis, resulting in substantial financial recoveries through judgments and settlements.
While I hold no reverence for Big Pharma and have personally witnessed the ravaging effects of opioid prescriptions, my empathy is counterbalanced by two concerning legal trends: the imaginative misuse of the “public nuisance” cause of action and the co-opting of private attorneys by public bodies.
The Distortion of Public Nuisance Doctrine
A public nuisance has traditionally been defined as “an unreasonable interference with a right common to the general public.” Historically in Anglo-American law, its application was narrow, used to address issues like blocking public roads, diverting public water sources, or emitting harmful fumes into the air. These examples align with the doctrine, as they impede the public’s rights to roads, water, and air.
Such lawsuits could prevent these interferences and provide damages if an individual was particularly harmed, such as a neighbor falling ill from toxic fumes.
In appropriate cases, public nuisance suits are logical when actions disrupt public property use. Allowing private citizens and governments to litigate to halt nuisances affecting air, water, or road access is sensible.
However, the doctrine has recently been contorted in novel ways: lawsuits targeting opioid manufacturers and climate cases against energy companies. While opioids have undoubtedly caused immense harm, and some pharmaceutical executives likely concealed risks for profit (as evidenced by admissions of guilt), there are existing legal avenues for redress.
The government can prosecute wrongdoers. Individuals can pursue personal injury or class-action suits. Recasting the sale of products, whether drugs or oil, as public nuisances significantly distorts the doctrine.
Public nuisance refers to actions interfering with a public right such as air, water, or roadways. Selling potentially hazardous products differs fundamentally from creating a public nuisance. The harm to public rights must be clear and specific, not vague, to uphold legitimate public nuisance claims.
Government Attorneys: Pursuers of Pure Justice
A related concern is that government agencies frequently hire private attorneys to manage these cases. To grasp why this is troubling, consider the unique role of public lawyers.
In 1940, U.S. Attorney General Robert Jackson addressed federal prosecutors, emphasizing their obligation to seek justice over victory: “Although the government technically loses its case, it has really won if justice has been done.”
This underscores that government lawyers represent the people, not individual entities, and must prioritize justice over winning.
As a former government attorney, I was deeply aware of my duty to serve the people and laws justly. Achieving justice, not necessarily winning cases, was my primary goal.
Government lawyers wield significant power and must remain impartial and dedicated to justice, unlike private attorneys who focus on winning and monetary gains.
When government attorneys fall short of this ideal, there’s a danger of misusing their power for purposes other than justice and the common good.
In current public nuisance suits, often led by state attorneys general, involving private lawyers on contingency fees corrupts the process. When money-driven private attorneys join these public lawsuits, it can lead to prolonged litigation, rejected settlements, and additional frivolous lawsuits for financial gain.
Often, these private attorneys are not selected through fair processes but are politically connected individuals. This exacerbates issues of corruption and places the legal process at risk of being seen as a political tool.
State attorneys general’s offices might use public nuisance suits to address common good issues or to advance policy without legislative input. Limited resources often lead to partnerships with private firms, altering the litigation’s dynamics.
Private Attorneys: Profit Over Justice
Government agencies may gain extra legal support from private lawyers without upfront costs, but the introduction of contingency fees changes the focus from public good to profit.
Successful public nuisance cases can enhance political capital for state attorneys general, but only financially benefit contingency fee lawyers. This financial motive can distort the lawsuit’s aim — shifting it from seeking justice to securing large settlements.
Moreover, political favoritism often plays a role in hiring these lawyers, sometimes funded by ideological billionaires like Mike Bloomberg, further corrupting the legal process.
The public often perceives these lawsuits as governments combating corporate malpractice, masking the reality of legal misuse and financial opportunism.
Addressing public issues like opioids or pollution should be within the purview of government attorneys through lawful arrests and prosecutions without distorting the public nuisance doctrine or involving profit-driven private lawyers.
