“That huge opioid verdict? Watch out — the energy industry is next”

Can the lawful sale of products be retrospectively declared a “public nuisance” and tagged with enormous damages, based on theories that the products caused harm after being used by third parties not in court? Before such theories succeeded in an Oklahoma courtroom against Johnson & Johnson over its promotion of opioid painkillers, they had been unsuccessfully deployed against the makers of guns used in crime, while another set of recent lawsuits attempts to deploy them in hopes of making the sellers of fossil fuels pay for the harms of climate change. Scott Keller, Houston Chronicle/Texans for Lawsuit Reform:

Public nuisance claims traditionally have been limited to conduct interfering with truly public rights. For example, courts for decades have recognized public nuisance claims brought by governments to remove impediments from their public highways or waterways. Even then, courts generally did not recognize such claims where a legislature or administrative agency had already regulated an industry. After all, if the political branches of government regulated an industry, then they were telling courts what did and did not qualify as an unlawful “nuisance.”

But a series of recent lawsuits wants courts to ignore these limits on public nuisance claims and obliterate entire industries. These lawsuits seek to massively expand what counts as a public right, and they want courts to destroy companies that are already complying with existing regulations.

Similarly: “’A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,’ said Richard Lazarus, a professor of environmental law at Harvard.” [Dino Grandoni, Washington Post]

Which raises a question: when trial lawyers were pitching Oklahoma politicos on the large sums to be gained by pursuing strained public nuisance theories against opioid makers, do you think they mentioned that the theories if embraced might work to shut down the locally popular oil and gas business?

5 Comments

  • Judges, many of whom are inept, have far too much power in this country.

  • If the basis of this is climate change damage, the trial will undoubtedly become a trial about whether or not climate change is real. It will become quite interesting as it will be the first time the climate change crowd will be forced to testify under oath and cross examined.

  • Replace Judges with:

    Parents.
    Political pundits
    Politicians
    Teachers
    Hedge Fund Managers
    Racists
    NRA members
    Pro-lifers
    Pro-choicers

    And, there you have it. The inept seem to run the country. One possible solution is to make everything smaller, so the ineptness has a lesser effect. Another is to appoint only the best to be the leaders and keep it going. That is, after all, how monarchs were crowned 1,000 years ago. At that time, the best was defined as the one who led the most powerful armies. Or. perhaps, we could put engineers in charge.

    • “Another is to appoint only the best to be the leaders and keep it going. That is, after all, how monarchs were crowned”

      No, that’s only how the first monarch in any given dynasty gets crowned. After that it’s all heredity. But all dynasties fail and the reason they fail is because they all eventually produce an incompetent heir.”

      “Or. perhaps, we could put engineers in charge.”

      Like the engineers who designed and built the Tacoma Bridge?

      The ultimate problem is that however you select the person/people in charge, ultimately the choice gets narrowed to those who want to be in charge. And no one who desires power is worthy of it..

  • If the People’s Democratic Socialists come to power, pack the Supreme Court, and loot oil producers to pay for their fantasies, they may wish to outlaw Ayn Rand’s Atlas Shrugged as well, lest someone be inspired by the career of the fictional Ellis Wyatt.

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