Vaping, climate change, and opioids might seem disconnected, but they have more in common than one might think. They’re each significant public challenges that state and local governments are attempting to solve through civil lawsuits in state after state across the nation.
National and global problems cannot be solved through litigation in local courts, but that hasn’t stopped cities, counties, and state governments from trying. It’s a growing problem for our nation and legal system, and judges and legislators must rein this in.
It’s the job and responsibility of state and federal elected officials to develop and carry out policy solutions that protect public interests.
The rush by local governments to file lawsuits in local courts seeking outsized payments in response to a national or international public policy crisis is misguided and harmful. Targeting “deep-pocket” defendants as a funding source to address public crises does little to help those in need. And lawsuit abuse has a real effect on the public: fewer jobs, increased insurance rates, and companies forced to redirect money away from research and development to pay for rising legal costs.
The multitude of state and local government lawsuits against industries is one of the most troubling legal trends highlighted in the American Tort Reform Foundation’s 2019 Judicial Hellholes report. The report shines a light on the year’s worst abuses in the civil justice system and in state legislative bodies.
Opioid litigation is the most prevalent example of this type of litigation today. Cities, counties and states claim manufacturers and distributors created a “public nuisance” — a legal term of art — by expanding the market for opioids through deceptive marketing campaigns involving misrepresentations and omissions about their lawful, regulated, non-defective products – and they claim damages and seek a slice of the industry’s money. The result of the thousands of local and state government lawsuits in courts across the nation? Chaos and confusion in our legal system, and due to the sheer volume of litigation since 2016, the opioid crisis is no closer to being resolved.
Quick to capitalize on emerging public health crises, the trial bar is now turning its attention to vaping and e-cigarettes. Trial attorneys are urging school districts to sue Juul Labs and other e-cigarette companies. They claim Juul has created a “public nuisance” through deceptive marketing, giving rise to a vaping epidemic that has harmed students and disrupted schools. School districts in Missouri, Kansas, New York, California, and Florida already have filed lawsuits, with many more expected to follow.
Climate change is seen as another opportunity for local governments to file civil lawsuits in order to capitalize on a global issue. New York City, Baltimore, and local governments in California have filed suits claiming that the oil and gas industry created a public nuisance — by producing energy Americans use every day. These lawsuits blame the industry for changes in weather patterns and sea level increases and attempt to make the companies pay for local infrastructure projects, such as sea walls.
These lawsuits concerning broad national public crises are the result of a concerted strategy by personal injury lawyers to recruit local officials as clients to file suit. Their legal tool is a new twist on public nuisance law, which historically was applied only in cases involving land use and property. Judges and lawyers are now dramatically expanding this law, often in states deemed “Judicial Hellholes,” where the civil justice climates stand in stark contrast to the rest of the nation.
The lawsuits add to the problems they intend to solve with prolonged litigation delaying the creation and implementation of programs to address these issues. It’s good for plaintiffs’ lawyers, who stand to earn millions in fees from verdicts or settlement. But the victims won’t be much better off.
Litigation is not the way to establish public policy, nor should it be used to solve complex public health problems. State legislatures and Congress must take action to address these major public policy issues — and to curb these inventive new local litigation avenues for lawsuits against companies and industries to prevent yet another crisis for our nation.
Sherman Joyce is president of the American Tort Reform Association.
