United States District Court, N.D. Ohio, Eastern Division
IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO: Track One Cases
OPINION AND ORDER
AARON POLSTER, UNITED STATES DISTRICT JUDGE.
the Court is the Motion of Plaintiffs Cuyahoga and Summit
Counties for Partial Summary Adjudication of their Equitable
Claims for Abatement of an Absolute Public Nuisance (Doc. #:
1890). Upon careful consideration of the parties'
respective arguments and for the reasons stated below, the
motion is DENIED.
move for an order ruling as a matter of law that: (i) the
opioid crisis constitutes a public nuisance, an essential
element of their claim of absolute public nuisance; and (ii)
upon a finding of nuisance liability, Defendants will be
jointly and severally responsible for the equitable abatement
of the alleged public nuisance, and may not rely on their
affirmative defenses to the contrary.
The Existence of a Public Nuisance.
assert the “opioid epidemic constitutes an ongoing
public nuisance under Ohio law” and that no reasonable
fact-finder could determine otherwise. They ask the Court to
award partial summary judgment declaring that the opioid
crisis significantly interferes with public health and
therefore establishes the existence of a
nuisance. (Doc. #: 1890 at 2-4, 22).
Ohio law, “it is the province of the court to define a
nuisance and the province of the [finder of fact] to
determine whether the circumstances of the particular case
come within the definition of a nuisance.” City of
Hamilton v. Dilley, 165 N.E. 713, 714 (Ohio 1929);
City of Toledo v. Gorney, 1988 WL 128304,
at *3 (Ohio Ct. App. Dec. 2, 1988) (same). Ohio follows the
Restatement of the Law (Second) Torts, which broadly defines
public nuisance as “an unreasonable interference with a
right common to the general public.” Cincinnati v.
Beretta U.S.A., 768 N.E.2d 1136, 1142 (Ohio
2002) (quoting Restatement § 821B(1)). The Ohio Supreme
Court has explained:
“Unreasonable interference” includes those
acts that significantly interfere with public health,
safety, peace, comfort, or convenience, conduct that is
contrary to a statute, ordinance, or regulation, or conduct
that is of a continuing nature or one which has produced a
permanent or long-lasting effect upon the public right, an
effect of which the actor is aware or should be aware.
Id., Section 821B(2).
Id. (emphasis added). To prove an absolute public
nuisance cause of action, evidence must establish: (1)
intentional or unlawful conduct or omission by the defendant;
(2) that unreasonably interferes with a right common to the
general public; and (3) a causal relationship between a
defendant's conduct and a plaintiff's injury.
See, e.g., Id. at 1141- 1144; City of Cleveland
v. JP Morgan Chase Bank, N.A., 2013 WL 1183332, at *3
-*4 (Ohio Ct. App. March 21, 2013).
support their position, Plaintiffs cite statistics and
testimony pertaining to the types and extent of harm
attributable to opioid-related problems in each of the
Counties (Doc. 1890 at 4-14 and referenced exhibits).
Plaintiffs contend that statements by certain Defendants
acknowledging the existence of an “opioid
epidemic” and “public health crisis, ”
demonstrate the absence of any dispute as to whether the
burden to prove the existence of a nuisance is satisfied.
(Id. at 14-22 and referenced exhibits).
Defendants maintain the existence of an opioid crisis in and
of itself does not constitute a public nuisance because the
analysis must also consider the conduct allegedly creating
the nuisance. Specifically, they assert that “the
existence of an ‘unreasonable interference'
requires an assessment of the effect of the alleged wrongful
conduct;” therefore, the first and second elements of
the claim should be determined together. (Doc. #: 2163 at
4-5; Doc. #: 2304 at 2). Plaintiffs reply that “a nuisance
is a harmful condition - not a defendant's
conduct.” (Doc. #: 2540 at 2).
fail to persuade the Court that separate adjudication of the
closely connected harm and conduct elements is either useful
or advisable. The interrelated nature of these elements is
evident in the Restatement's use of the phrase
“unreasonable interference” to define both
cognizable harm and actionable conduct. See
Restatement § 821B(1)-(2); Cincinnati v.
Beretta, 768 N.E.2d at 1142. The Court finds the two
elements to be intertwined and not independently determinable
as a matter of law in these actions. Whether the opioid
crisis constitutes a public nuisance is a question that must
await full airing of the facts at trial.
Plaintiffs motion is denied to the extent it seeks summary
adjudication of the existence of a public nuisance.
Joint and Several Liability.
move to strike Defendants' affirmative defenses that
assert they are not jointly and severally liable for
abatement of the alleged public nuisance. Plaintiffs ask the
Court to rule now that any Defendant found responsible for
creating or maintaining the public nuisance will be held
jointly and severally liable for its abatement. Plaintiffs
contend this ruling regarding liability for the equitable
relief they seek is not barred ...