During a hearing on Tuesday, the Maryland Supreme Court signaled an openness to public nuisance claims extending beyond actions involving property, potentially to include liability of nefarious actors in the opioid crisis. To that end though, the court appeared reticent to establish definitions and guardrails for cases, instead potentially looking to rely on the General Assembly for guidance. 

For a little over an hour Tuesday morning, the Maryland Supreme Court heard oral arguments from legal representatives of Anne Arundel County and the petitioners – a class of pharmacy benefit managers (PBMs) and opioid distributors. As previously covered on the Conduit Street blog, the parties were present to argue the grounds for a public nuisance claim brought by Anne Arundel against opioid distributors and PBMs that has made its way to the Maryland Supreme Court.

According to a federal district court, in Anne Arundel County, Maryland v. Express Scripts, Inc., et al. the county has asserted a novel claim in an unsettled, novel area of Maryland law. With the conclusion of oral arguments before the Maryland Supreme Court, this policy deep dive will explore how the justices responded to arguments in this case and whether those inquiries signal any particular disposition moving forward.

Why Are the Courts Confused on the Issue?

When Anne Arundel originally filed a suit against opioid distributors and the pharmacy benefit managers in the local circuit court, a motion to dismiss the case was filed by the defendants. This motion was denied by the Circuit Court of Anne Arundel County, thus asserting that standing for the case exists, but it did so without an explanation of what the courts in Maryland might consider in trying to weigh the facts of the case. The case was then refiled by Anne Arundel in the federal district court which was then obliged to weigh in on how the case should move forward and began to look for answers in existing Maryland case law.

When Judge Matthew J. Maddox looked to other circuit courts across Maryland for guidance on such a claim, the federal district court came up with what they believe to be insufficient findings to weigh in on the standing of the case without the opinion of the MD Supreme Court. The brief filed in the district court on the matter, by Judge Maddox, said that the denial to dismiss the claims in the Circuit Court of Anne Arundel was absent any substantial justification or inference as to what the Appellate Court in Maryland would do with the claim. The federal court then looked at a case in Baltimore City that was dismissed because, in Maryland, public nuisance has been applied only to cases involving land. Additionally, Judge Maddox cited Mayor & City Council of Baltimore City v. Purdue Pharma pointing out that that court, when dealing with a similar question of standing, stated that this issue was anticipated to eventually reach the jurisdiction of the Maryland Supreme Court.

The federal court therefore found enough gaps to order that the Maryland Supreme Court answer two questions, as requested by the defendants, and clarify if a public nuisance claim of this type has standing and what are those elements and eligible relief. The below is a highlight of the primary discussion points of the hearing as well as inquiries and perspectives posed by the justices in considering the arguments.

Does Maryland Case Law Affirm a Land Use Requirement for Public Nuisance Claims?

When the defense for the companies, filed a motion to dismiss Anne Arundel’s claims, they argued that Maryland courts have never recognized a claim for public nuisance based upon “the collective effects of harms suffered by individuals from the misuse of a lawful product.” Additionally they point out that no Maryland court has found a public nuisance “in any case that did not involve property.” The defense hoped to extrapolate this to mean that a public nuisance claim is required to have a land component, to which a few of the inquiring justices denied outright in both of the examples proposed by the petitioner.

Justice Watts went further, explaining to the petitioner that not only does one of the cited case of Tadjer v. Montgomery County not affirm this requirement, it actually says the public nuisance claim at that time was rejected for not being clearly defined. Justice Booth also confirmed that the court understands case law supports the notion of public nuisance involving property but questioned the petitioner as to when that might not apply, potentially inviting the idea that it could. Additionally, a few justices made remarks as to the uniqueness, gravity, and damage caused by opioid manufacturers and distributors in considering these questions. They alluded to the idea that just because some assume these types of claims fall outside the common interpretation of public nuisance law, that does not mean the case doesn’t have standing, particularly in light of the real world consequences of the actions taken by the companies responsible for the opioid crisis.

From the plaintiff perspective, while the justices also disagreed that Tadjer v. Montgomery does not affirm the standing of Anne Arundel’s public nuisance claim in this instance, the inquiries by the justices to Anne Arundel were mainly based on the need for appropriate definitions and guardrails that would be necessary in order to hear the case effectively. Objection to the local government argument therefore seemed to more specifically focus on what are the boundaries for a claim like this and who should be deciding those.

Does the General Assembly own the space, guardrails, and definitions?

The standing debate then lead to the question of, if the case where to move forward, is it for the General Assembly or the courts to clarify the definition of a “right common to the general public” and what is constituted therein as far as the elements and a violation. To this end, Justice Booth reiterated that if the original claim by Anne Arundel were to move forward there would need to be guidelines specifying what is considered unreasonable. Justice Killough went on to add that there would need to be an understanding of a limiting principle.

On this same question in terms of the role of the General Assembly, the thought was posed as to whether it was the intent of the General Assembly to occupy the entire space in regulating pharmacies with the Pharmacy Act. If so, in this instance they wondered, have they effectively preempted additional regulation or actions by local governments if the General Assembly did not specifically spell out the local authority. The justices did not signal intent either way on this question.

How Should the Court Distinguish Between Public Nuisance and Personal Choice?

About midway through the hearing the question came up from Justice Killough as to the standard for personal drug abuse to be considered a public nuisance simply because someone manufactured and distributed the substance. He likened it to obesity as an epidemic, or the choice to over use social media despite the dangers. He went on to question what it would look like to regulate a fast food company because they make something people can be harmed by if their lifestyle choices lead to that harm. To this question the point was made that over-consuming something that is known to be unhealthy by choice is uniquely different than taking a controlled substance, as prescribed by a doctor, for a required treatment plan, which then leads to an addiction.

The harsh juxtaposition of the damage caused by a cheeseburger verse opioids could not be ignored, with Justice Watts later reiterating an understanding of the serious harms that were done to communities by opioid manufacturers and distributors. It was clear the court did not intend to be insensitive on the matter and that the comparison showed that justices feel strongly that a limiting principle on the expansion or clarification of the definition of public nuisance in Maryland, particularly as it arises untethered to a case involving land, is necessary. Justice Killough reiterated that as the intent of the line of questioning because of what is already known about the purposeful and intentional effort to flood the market with these dangerous substances by opioid manufacturers and distributors.

Conclusion

A decision from the court is anticipated in the next nine to twelve months. While the justices showed a willingness for public nuisance claims to extend to the type of tortuous action specified by Anne Arundel, they did express that if this were to be the case then more definitions and clarifications would be necessary to maintain the integrity of the courts analysis on similar claims. If the court decides there is standing and this is something that demands more clarification from the state legislature then there is potential for the Anne Arundel claims, and others, to move forward pending those actions by the General Assembly. Additionally discussed on the Conduit Street podcast earlier this week, was the significance of the case for county governments and the potential to recover damages and remediation costs for the opioid crisis as well as the precedent it could establish on similar matters. The profusion of dangerous perfluoroalkyl and polyfluoroalkyl substances (PFAS) in communities is one example.