Oberweis: Legislatures, not courts, should decide public policy
By Jim Oberweis
Families across the country are feeling the pain of the high cost of goods and services this Christmas season as everything from the cost to prepare a Christmas dinner to the cost of buying presents has gone up. Even the cost of wrapping gifts has gone up.
Some of it is supply-chain issues. A lot of it is the massive amount of money the federal government is printing. But one driver that is often ignored is the cost of litigation.
Of course, there is nothing wrong with people seeking financial compensation when they have been harmed. One of the functions of our courts is to ensure that people are made whole when they are injured.
The trend lately though is to file lawsuits and seek compensation not only for an actual injury but for a potential injury by misapplying our country's public nuisance laws.
Those laws were originally created to protect the public's common right to use land or water for specific purposes. They were intended to stop people from doing things like polluting water and other harmful acts. Traditionally the courts would stop the nuisance-causing activity and require the person engaging in that activity to pay abatement costs.
Today, plaintiffs' lawyers have realized that if they find a hot button political issue, they can rally enough support to sue on behalf of an entire community without abiding by class action rules and they can do this without showing actual harm but rather "potential harm."
They then work with attorneys general on a contingency basis and strategically file these public nuisance lawsuits in friendly court jurisdictions. These "super torts" have been popping up all over the country.
A recent example is a case in Oklahoma. Plaintiffs' attorneys working in conjunction with the Oklahoma attorney general won a $465 million judgment against Johnson & Johnson for their alleged role in the opioid crisis.
The Oklahoma Supreme Court later overturned the judgment. Justice James Winchester wrote in the majority decision, "The district court's expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches."
Another case that showed the ridiculous reach of these public nuisance lawsuits came out of Ohio. A federal jury found that three of the nation's largest pharmacy chains - CVS Health, Walmart and Walgreens - had substantially contributed to the crisis of opioid overdoses and deaths. If reason and logic win the day, we will likely see this ruling overturned as well.
Washington State, a notably absent state from the recent $26 billion settlement that was reached with more than 40 U.S. states for addiction treatment, prevention services and other steep expenses from the epidemic, has also launched a similar effort to Oklahoma. Where many onlookers, particularly anyone interested in running a business in the state, will be watching the results carefully.
Issues such as climate change or the opioid crisis are matters for legislators and governors to decide, not judges. Holding private companies responsible for engaging in legal activities is not how public nuisance laws were intended to be used.
Public nuisance laws are supposed to protect people from those who are intentionally trying to do harm, but the public nuisance lawsuits being filed today are nothing more than an attempt to hold companies liable for societal problems regardless of who is at fault or whether the redress in the lawsuit will even address the harm caused.
The end result of the misuse of public nuisance laws is a higher cost for goods and services for all of us. The cost of litigation like any costs for companies are inevitably passed onto consumers. If we want to curb rising inflation one important step would be to stop the abuse of our public nuisance laws.
Jim Oberweis is a former state senator and former Congressional candidate from Spring Grove.