NR: AG Misuse of "Public Nuisance" Getting Worse Not Better - Climate Litigation Watch

NR: AG Misuse of “Public Nuisance” Getting Worse Not Better

National Review has an instructive piece on “West Virginia attorney general Patrick Morrisey’s recent lawsuits to join other states — and the heavily Democratic mass-tort plaintiffs’ bar — to recover money from pharmaceutical manufacturers and large pharmacy chains” for “public nuisance”, grounded in the opioid crisis.

Given some remarkable background CLW has learned about state attorney general involvement with the tort bar’s “climate nuisance” campaign — including, but not at all limited to, a former California Attorney General named Kamala Harris — this piece is particularly timely.

CLW excerpts the item at length, and recommends the entirety which is available here:

It seems that the mass-tort plaintiffs’ bar, who are primarily concerned about using state enforcement power for their own financial gain, seduced Morrisey and other state attorneys general with the siren song of huge financial settlements. The fact that Morrisey outsourced previous opioid-related, mass-tort lawsuits to Motley Rice, LLC, which is headquartered in South Carolina and is one of the largest and most infamous mass-tort plaintiffs’ firms in the country, shows this.

Elected state officials such as Morrisey often mistakenly think that, if the mass-tort plaintiffs’ firm succeeds, they will be able to successfully campaign on the monetary recovery and say that they “did something” for their constituents. The mass-tort plaintiff’s firms need a local or state government partner such as Morrisey so that they can sue companies or industries in behalf of an entire community while avoiding traditional class-action rules.

For the mass-tort plaintiffs’ firms, whether or not the targeted companies actually caused harm or are otherwise legally responsible is irrelevant. In fact, the more broadly they cast blame, the more the firms believe that they can get away with not having to prove specific allegations against specific actors.

Morrisey knows that over the decades the heavily Democratic mass-tort plaintiffs’ bar has tried to expand public nuisance and remove traditional property and causation requirements so that they could sue, without limitation, manufacturers and other companies for billions of dollars when someone intentionally misused one of their legally made and legally sold products. (Imagine suing Ford because someone used an F-150 to intentionally run over someone, or claiming that the exhaust from Ford’s vehicles allegedly contributed to global warming).[NB: It’s more absurd than that for the climate “public nuisance” claims, which don’t allege that the energy companies’ products were illegally used by customers, many of whom were the plaintiffs who, the theory goes, also “knew” they were causing catastrophic man-made global warming.]

If Morrisey and the courts allow these flawed public-nuisance lawsuits against the pharmacy companies to go forward, it only will encourage attacks against disfavored or politically unpopular industries such as vaping and e-cigarette companies (addiction, abuse); oil, gas, fracking, and coal companies (global warming); and fast-food and restaurant chains (obesity, addiction). Interestingly, the mass-tort plaintiffs’ firms do not seem to use public-nuisance lawsuits against the entertainment, high-tech, wind power, or solar-power industries, or any other industry that is usually associated with Democrats or liberals…

…They do this because they know they cannot win a traditional products liability or intentional torts case. They are, in essence, trying to “shake down” businesses that sold or sell legal products and broke no law for huge financial settlements.

… These public-nuisance lawsuit abuses were somewhat different in subject matter, but they all sought to create massive collective liability where none existed over a complex issue, even though there were no actual legal or factual grounds to sue the targeted companies or industries.

These legally erroneous public-nuisance lawsuits contravene traditional legal principles, rule of law, and separation of powers. If a state legislature or municipal city council wants to legislatively expand the definition of “public nuisance,” then they can put it to their voters and live with the legal and economic consequences. But legislation through litigation (“litigslation”) is an inappropriate use of the courts and civil-justice system to set public policy.