As the state of Florida and Walgreens face off in a trial over liability issues in the opioid epidemic, tort reform supporters are raising questions about whether protracted litigation is the best way to deal with such a complex social problem.
Among the pharmacies and pharmaceutical companies sued by the Florida attorney general for their alleged roles in the opioid epidemic, Walgreens is the only company that has not settled. The case against the pharmacy is now taking place in Pasco County, north of Tampa.
Florida Chamber of Commerce President Mark Wilson recently authored an op-ed suggesting that the “public nuisance” doctrine is now being expanded and perverted by local and state government entities in efforts to extract damages awards from businesses over issues that may be beyond the control of those businesses.
Tort reformers argue that the public nuisance doctrine has traditionally been linked to land use, such as the neighbors of a pig farm alleging that the stench from pens is depriving them of their enjoyment of their private property.
“We are now seeing attempts by personal injury trial lawyers on behalf of governments to expand and redefine these traditional limits,” Wilson said in the op-ed, adding that the attorneys are often motivated by the substantial fees they stand to collect on a contingency basis..
Opioid lawsuits are a case in point, he said.
“We are seeing this in suits against lawful pharmacies for filling lawful opioid prescriptions,” Wilson said in the op-ed. “This is not to say there is no problem, but that governments need to step up and regulate, not try to avoid policy making and increase revenues by loosely claiming a public nuisance by all entities involved, even those in compliance with the law.”
Tiger Joyce, president of the American Tort Reform Association, agreed that the public nuisance argument is being overused in opioid litigation.
“I think we have seen public nuisance as it’s been utilized as sort of a catch-all for some of these government lawsuits,” Joyce told the Florida Record.
The Oklahoma Supreme Court recently overturned an opioid damages award against Johnson and Johnson, finding that the public nuisance argument used in the case went too far and had no legal basis.
A better way to handle the opioid epidemic would be through public policies developed by lawmakers, regulators and public health officials, all of whom are accountable to the public, according to Joyce. Attorneys operating on a contingency basis are not so accountable to governments and their representatives, he said.
“What is the appropriate way and the mechanisms for society to deal with this?” Joyce said. “To put it in court is to miss the boat.”