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In re National Prescription Opiate Litigation

United States District Court, N.D. Ohio, Eastern Division

September 4, 2019

IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO: Track One Cases

          OPINION AND ORDER

          DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE.

         Before 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[1] and for the reasons stated below, the motion is DENIED.

         Plaintiffs 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.

         I. The Existence of a Public Nuisance.

         Plaintiffs 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.[2] (Doc. #: 1890 at 2-4, 22).

         Under 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).

         To 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).

         Responding, 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).[3] Plaintiffs reply that “a nuisance is a harmful condition - not a defendant's conduct.” (Doc. #: 2540 at 2).

         Plaintiffs 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.

         Accordingly, Plaintiffs motion is denied to the extent it seeks summary adjudication of the existence of a public nuisance.

         II. Joint and Several Liability.

         Plaintiffs 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 ...


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