Dr. Anthony Fauci is the most recognized medical doctor in America. His near-daily press statements and interviews during the COVID-19 pandemic made people feel he was their personal doctor. There he was, at the podium in the White House, dispensing medical advice for how to avoid COVID-19 and how doctors should treat patients who were infected.
We all remember in March 2020 how he told America that face masks would not help prevent the spread of COVID-19. He specifically said on national TV: “People should not walk around wearing masks.” He later said that he intentionally lied when he told Americans not to wear masks. He justified his lie by saying that masks were in short supply and that he wanted to save the masks for healthcare workers. He later told Americans that they should wear masks to avoid infection.
Assuming the statement about masks helping to avoid infection is the truthful one (and one supposes that is why masks were needed by healthcare workers), Fauci’s first statement likely led to thousands upon thousands of Americans being infected with COVID-19, with some unfortunately succumbing to the disease and losing their lives. If masks prevent infection, then some people’s failure to wear a mask directly led to their illness and, in some cases, death.
So, the question now becomes: Should Fauci be liable for his initial false statement? A recent Oklahoma trial court judgment against Johnson & Johnson suggests that Fauci’s statements could be found a “public nuisance” that led to the infection and death of thousands of Americans. Under that trial court’s theory, Fauci should be held liable. (Of course, he would have immunity as a government official; our government would grind to a halt if government officials actually had to tell the truth.)
In the Oklahoma case, Johnson & Johnson was ordered to pay nearly half a billion dollars to the state of Oklahoma as damages for the state’s problems with opioid addiction and overdoses. Although the pharmaceutical company only sold about 1% of the opioid prescription drugs in that state, the judge ruled that the entire opioid epidemic in Oklahoma was the fault of this one company because the company had sponsored articles in medical journals and presentations at conferences to educate medical professionals about the under-treatment of pain in America. The trial court held that this constituted a “public nuisance.”
Nuisance law was developed to provide a remedy for damage to an individual’s use of their private property (from pollution, noise, smoke, etc.). Public nuisance law was the answer to interference with public property or a large number of private property owners. It was never intended, however, to be used to punish public statements, or to adjudicate whether surgical masks should be reserved for health professionals or whether there was a problem with the under-treatment of pain (something a task force of the Department of Health and Human Services concluded was a problem in America).
Using the law of public nuisance to adjudicate these types of issues takes public policy decisions out of the hands of elected officials and expert administrative agencies that were created to make such decisions. It puts public policy decisions in the hands of local trial judges who do not have the training or expertise to decide whether it was better to lie to Americans, thereby causing infections and deaths in thousands, in order to protect healthcare workers and possibly save thousands more Americans because those workers did not get infected.
Similarly, asking a trial judge to render a verdict on the science and best medical practices for the treatment of chronic, debilitating pain does not make sense. How is a trial court judge supposed to make such a decision? Putting these questions in the hands of trial judges is a recipe for disaster.
Yet trial attorneys and local officials are turning more and more to public nuisance law as a means of addressing difficult public policy issues such as climate change, gun violence, and smoking. Trial courts may be good at ordering companies to pay multimillion-dollar verdicts, but they are not equipped to make public policy decisions best left in the hands of elected officials.
Should Fauci have lied to America in order to protect healthcare workers? That is something Congress should address. Did Johnson & Johnson promote deceptive statements about the treatment of pain and the safety of prescription opioids as a treatment for pain? That is a question for the Food and Drug Administration. It is not something that can be adjudicated by a local state trial judge.
Anthony Caso is a clinical professor of law at Chapman University’s Fowler School of Law and a senior legal fellow at the Claremont Institute.
