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Key Takeaways
The recent decision by Maine's highest court is part of a trend of state courts dismissing public nuisance claims against opioid makers and sellers.
In recent years, state courts have rejected efforts to extend public nuisance law to cover the sale, marketing, and selling of FDA-approved prescription opioid medications. These include supreme courts in Oklahoma and Ohio, and a trial court in Alaska. See e.g., State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 731 (Okla. 2021) ;, 499 P.3d 719, 731 (Okla. 2021) ;In re Nat'l Prescription Opiate Litig., 2024 WL 5049302 (S. Ct. Ohio, Dec. 10, 2024) ; State v. Walgreen Co., 2024 WL 1178352 (Alaska Super. Ct. Mar. 1, 2024).
On February 6, 2025, the Maine Supreme Judicial Court became the latest state supreme court to follow this trend. E. Maine Med. Ctr. v. Walgreen Co., 2025 ME 10, __ A.3d __. The Court affirmed the dismissal of tort claims by hospitals against opioid marketers and distributors, including a public nuisance claim. Id. at ¶ 1.
The hospitals argued that the defendants' sale of opioids "interfered with public health, that public health is a cognizable public right, and that the Hospitals' unreimbursed costs resulting from the opioid epidemic are a special injury." Id. ¶ 22. In rejecting this claim, the Maine Court held that the hospitals did not sufficiently allege that the sale of opioids caused a nuisance that interfered with a separate right of the hospitals different in kind from an injury to the public. Id. ¶ 28. The Court also held that the hospitals' alleged economic loss was similar to the broader public's injury and therefore, could not support a public nuisance claim. Id. However, the Court left open the possibility of a governmental entity bringing a public nuisance claim on behalf of the public. Id. ¶ 25.
The West Virginia Supreme Court is expected to rule on a public nuisance claim against opioid distributors this year. City of Huntington v. Amerisourcebergen Drug Corp., No. 24-166 (W. Va. Apr. 19, 2024). It remains to be seen whether West Virgina will join other states in rejecting the public nuisance argument.
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