Landmark Liability Case and the Common Law's Lament

Landmark Liability Case and the Common Law's Lament
AP Photo/Sue Ogrocki, Pool
Landmark Liability Case and the Common Law's Lament
AP Photo/Sue Ogrocki, Pool
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Language and the limits of the common law suffered this week as an Oklahoma judge declared Johnson & Johnson liable for supposedly creating what the judge called a “public nuisance” resulting in the state’s opioid crisis.  

In this case, the judge’s adoption of the state attorney general’s claim that Johnson & Johnson caused a “public nuisance” as the basis for ordering the company to pay $572 million to fund a crisis abatement plan represents a use of the term unmoored from its bounded common law meaning. 

Just because you call an airplane a bird doesn’t make it so.  Like the laws of nature, the common law too has necessary elements before we can accurately use the certain names for types of legal wrongs.   

The Oklahoma judge has effectively redefined public nuisance to include when someone manufactures a legal product with legitimate, indeed often socially beneficial, uses, but the product may be misused or misdirected toward harmful uses by some consumers.  And, no independent wrongful act by the manufacturer is necessary.

In contrast, the law actually defines a nuisance as the use of one’s own property so as to substantially and unreasonably interfere with another’s use and enjoyment of their land.  A public nuisance then is a real property tort that involves liability for actions that unreasonably interfere with the public’s use of public property, most notably when someone blocks access to public highways or waterways or when someone pollutes public resources such as air or water.  

The legal term public nuisance, like the term bird, only technically fits when it fits.  The law is a technical field and the necessary features must be present for the label to be an accurate one.

Notice that none of those elements for a legal claim of nuisance or public nuisance at common law even remotely fit cases dealing with the manufacture of goods.  These aren’t cases about land use or about interference with public property. 

Worse yet, the theory in the Johnson & Johnson case defies other traditional limits of legal liability where someone is normally only liable if there is proof of some wrongful behavior that actually caused the harm.  Here, the manufacturer did not force consumption of the pills and has not acted to cause the abuse or addiction.

If this is the new standard, then attorneys general could go after any manufacturer if enough people misuse their products, even though the product itself is lawful and useful for positive purposes by many of the intended uses.  If ropes or bedsheets are common instruments of suicide, should the makers of those products be responsible for a suicide epidemic?  Common sense tells us that these companies should not be held responsible simply because they manufactured a product misused by some to do harm.

Perhaps rope or bed sheet manufacturers will not be next to face suit, but the Oklahoma ruling will undoubtedly capture the attention of innovative litigants seeking to draw lines between other manufacturers and harmful uses of their lawful products, despite the makers having no control over the behavior of users. 

This precedent is likely to be extended in new lawsuits against gun manufacturers who will be claimed a public nuisance because some people misuse guns to perpetrate violence, or to producers of food with trans fats who will be tagged a public nuisance because some people become obese or develop diabetes-inducing eating habits, or to cattle ranchers who will be aligned with the so-called public nuisance of heart disease.    

If these kinds of liability claims are validated, many manufacturers will likely be priced out of producing legal products for legitimate uses.  Others will be forced to increase prices to offset the risks of liability.  And, the precedent alone changes the litigation stakes and gives plaintiffs bar and attorneys general leverage to induce settlements.  Each result harms lawful consumers who use the lawful products responsibly.

The common law weeps as we weaken it by transforming legally defined and limited doctrines like “public nuisance” into a shape-shifting concept used to affix liability on producers of lawful goods or to pull out whenever we want the courts to intervene in social policy.  Casually using a term for rhetorical effect doesn’t change the constituent parts needed to give it a legally enforceable form any more than calling an airplane a bird transforms the airplane into an animal. 

Donald J. Kochan is the Parker S. Kennedy Professor in Law at Chapman University Fowler School of Law in Orange, California.

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