By Megan Deardorff, Esq., LL.M. und Dr. Kathrin Nordmeier, Esq.

Any business involved in the chain of manufacture of a product sold in the United States (including component part manufacturers, assembling manufacturers, wholesalers and even retailers) could find itself embroiled in mass products liability litigation due to design, manufacturing or marketing defects. The legal defense costs associated with such claims, from pre-trial discovery and drafting and arguing pre-trial motions to hiring expert witnesses, can be extraordinary, not to mention potential high damage awards if the case goes to trial and a business is found liable. There has been an interesting trend in the past couple of decades, however, toward another potential claim in mass tort litigation that could similarly affect these same businesses: public nuisance.

What is “Public Nuisance”?

Public nuisance is a tort (an act or omission, other than under contract, giving rise to injury or harm and amounting to a civil wrong for which courts impose liability) that stems from 12th century England. The crown utilized public nuisance claims to cease conduct it considered a hindrance to the public, such as blocking a public roadway. Adopted and adapted by the U.S., governmental entities also historically used public nuisance claims to enjoin conduct that interfered with a public right. Due to the availability of numerous other legal remedy routes, however, public nuisance was so rarely utilized that it was not even included in the First Restatement of Torts (1939), a publication upon which U.S. courts widely rely and frequently cite. In 1979, public nuisance was added to the Second Restatement of Torts as “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts § 821B (1979).

The Second Restatement further clarified that interference may be considered “unreasonable” if the conduct involves significant interference with the public health, safety, peace, comfort or convenience, or if it is proscribed by a statute, ordinance or administrative regulation, or if the conduct is continuing in nature or has a permanent or long-lasting effect, and as the actor knows or has reason to know, has a significant effect upon the public right. Since the focus of public nuisance is on the impact to the public, public authorities retain the right to sue, and individuals only have a right of action under public nuisance if they can prove a special injury/particularized harm different than that suffered by the public at large.

Public Nuisance in Mass Torts Cases

There is typically some public injury aspect of mass tort actions, which usually involve product liability claims requiring plaintiffs to prove very specific elements that may vary depending on the jurisdiction. These elements generally include, inter alia, a defective product, an injury to the plaintiff, and the defective product was the actual and proximate cause of the plaintiff’s injury. Proving liability in products liability cases is not particularly easy since defendants have multiple defenses at their disposal, including state-of-the-art, causation-in-fact, proximate cause, remoteness doctrine, product alteration, failure to maintain product, assumption of the risk and statute of limitations.

For public nuisance claims, the elements of proof may include that the defendant’s actions were unreasonable, the defendant continued such acts for an unreasonable period, there was a causal connection between the defendant and the nuisance complained of and there was an injury or damage threat to the plaintiff. Defenses may include coming to the nuisance or assumption of the risk. It is important to note that defenses to a products liability case are not necessarily available in a public nuisance action.

In some of the first instances where public nuisance was utilized as a claim to prove liability in mass tort actions, New York plaintiffs in the 1980s successfully sued chemical manufacturers for disposing chemical waste that seeped into the public water supply. Other public nuisance mass tort actions involved claims against asbestos manufacturers in the 1990s. In the latter cases, the courts held the manufacturers lacked control of their product after it was installed in various buildings and were therefore not liable for what occurred in those buildings. Big tobacco litigation was another area where public nuisance cropped up as a viable claim with 46 states suing tobacco companies for the governmental and societal costs of treating smoking-related disease. Thereafter, public nuisance saw additional movement in lead paint litigation, where such claims were occasionally allowed to move forward.

The Opioid Crisis and Beyond

The latest situation in which public nuisance is again making an appearance is litigation regarding opioid abuse. In the late 1990s, healthcare providers began to prescribe opioid pain relievers at greater rates ultimately leading to widespread misuse of these highly addictive medications. In one of the most widely-known cases, the State of Oklahoma claimed that pharmaceutical companies’ marketing and sale of opioids created a public crisis and thus public nuisance under Oklahoma law. The judge ruled that the companies engaged in deceptive marketing and downplayed negative side effects of opioids to the public, which led to higher rates of addiction, overdose deaths and birth defects and that the companies were the direct and proximate cause of that public nuisance. The court ordered the companies to pay USD 465,000,000 in damages to assist in funding a number of governmental programs to clean up the consequences of the opioid epidemic. The Oklahoma Supreme Court overturned that ruling last November, however, and found that the lower court wrongly interpreted the state’s public nuisance law. Particularly, the Oklahoma Supreme Court ruled that the pharmaceutical companies had no control of their products after they sold the opioids to distributors and wholesalers who then disbursed them to pharmacies, hospitals and doctors’ offices. The court also stated that the companies had no control over how patients used the products.

In another recent ruling, the Southern District of Illinois in February of this year dismissed plaintiffs’ public nuisance claim against two chemical manufacturers in a lawsuit alleging harm to agricultural workers as a result of exposure to the herbicide paraquat. The court held that the plaintiffs did not claim a public right and that defendants did not exert control over the product at the time of its application. Further, the court recognized that paraquat is a legally sold product, complying with the applicable regulations required for sale within the U.S.


There appears to be a national trend toward rejecting public nuisance as a viable claim in mass products liability cases; however, there are still multiple lawsuits making their way through courts across the U.S. and other rulings could be different. There are a variety of factors at play, and public nuisance law differs from state to state. Further, some trials are bench trials while others are jury trials, with juries tending to side more for plaintiffs in such cases. Additionally, there are already public nuisance lawsuits stacking up against other manufacturers, including manufacturers of e-cigarettes. It’s worth keeping an eye on these cases to see what defenses could be useful against public nuisance claims and where and how courts are allowing them to proceed.


Die Autoren:

Megan Deardorff, Esq., LL.M. ist Foreign Attorney bei Noerr.

Dr. Kathrin Nordmeier ist Rechtsanwältin (Counsel) bei Noerr.