The Maryland courts have ruled that there is no broad “public nuisance” avenue available in Maryland law to target potential causes of public harm.

While Maryland Supreme Court justices differed over local government’s right to recover damages from opioid distributors under a common-law claim of public nuisance, the majority opinion effectively barred a county’s claim of this type, with other justices expressing concern that the majority went too far and applied inconsistent logic in the final ruling.

As previously covered on the Conduit Street blog and podcast, the Supreme Court of Maryland heard arguments in September on a county government’s right to bring a public nuisance claim against opioid distributors and pharmacy benefit managers (PBMs) to recover damages. In late March, the court issued an opinion on the case – Express Scripts, Inc., et al. v. Anne Arundel County. The result is a limiting effect on local government’s ability to bring claims and seek damages on behalf of the public when the behavior of nefarious actors has caused widespread harm.

Why does Express Scripts, Inc., et al. v. Anne Arundel County matter to counties?

The opioid crisis has had profound operational and financial impacts on county governments across Maryland because counties are responsible for delivering many of the front line services needed to respond to addiction, overdose, and related community harms. County emergency medical services, detention centers, public health departments, behavioral health programs, homeless services, and law enforcement agencies have all experienced increased demand tied to opioid misuse and addiction. Settlement funds that have been paid out by national manufacturers do not cover the full cost of extensive local remediation efforts, so these impacts ultimately fall on local taxpayers, who fund many of the county services required to address the crisis. Damage recovery from cases like the one filed by Anne Arundel present an avenue to recoup more of these costs from the bad actors whose actions contributed to the increased need in services.

What did the Maryland Supreme Court decide?

The decision spent substantial time tracing the evolution of Maryland common law and the origins of the public nuisance doctrine, the extensive federal and state regulatory and statutory framework governing prescription opioids, and an extensive review of prior public nuisance cases.

Justice Brynja Booth, writing for the majority, said, “that the licensed dispensing of, or administration of benefit plans for, a controlled substance does not constitute an actionable public nuisance under Maryland common law.”

The decision goes on to share that the majority believed the county was unable to demonstrate the public right to which the defendants obstructed. The primary ground for this decision rested on the understanding amongst the justices that opioids do not harm everyone who uses them, unlike something like a damaged roadway or air pollution. It’s differential depending on the behavior of the individual receiving the medicine.

From the majority opinion:

In conclusion, we hold that that the licensed dispensing of, or administration of benefit plans for, a controlled substance does not constitute an actionable public nuisance under Maryland common law. Maryland has not expanded the public nuisance doctrine beyond the traditional historical principles embodied in the common law—namely, that a public nuisance action was not regarded as a tort but was instead a public action by a government entity to pursue criminal prosecutions or seek injunctive relief to abate harmful conduct. This Court has never recognized a government entity’s ability to recover damages for public nuisance.

Justice Shirley M. Watts and Justice Matthew J. Killough agreed with the outcome broadly but made separate arguments that the majority erred in analyzing certain components of the case. Justice Watts wrote describing what they see as a contradiction in the Courts decision – while she agreed that the Court should defer to the General Assembly regarding any expansion of the common law of public nuisance, deciding the merits of the county’s complaint was premature and at odds with the expression of exercising judicial restraint. In reaching the conclusion that the county had not established an appropriate public right, the majority essentially defined a public right as excluding a “right to be free from the adverse effects associated with a lawful product being diverted, misused, or abused.”

From the Watts concurring opinion:

As the General Assembly has yet to define a common public right—or to decide whether it will do so—this Court cannot know what such a definition might entail or whether the County’s complaint would fall short. Accordingly, the Majority’s definition of a common public right in this context and its conclusion that the County’s complaint fails to meet that standard is premature.

Justice Killough expressed agreement on the fact that a public nuisance claim does not need to be tethered to real property and that the infringement on a public right was not adequately established by the plaintiff. However, he believes the Court went too far by essentially establishing a “categorical rule that shuts the courthouse door to all future public nuisance suits of this kind,” rather than allowing future cases to further develop when and how Maryland’s common law of public nuisance will develop in the future.

What are the repercussions of this opinion beyond opioid cases?

The Court’s decision significantly narrows the ability of counties and local governments to pursue public nuisance claims against companies in future large-scale public harm cases beyond opioids. By emphasizing that courts should not expand nuisance law into areas involving lawful, heavily regulated products and by requiring a direct interference with a traditional “common public right,” the ruling raises the bar for counties seeking to recover costs tied to widespread societal harms. That framework may make it more difficult for local governments to pursue damages related to other public health, environmental, or consumer harms where the impacts are indirect, diffuse, or tied to the actions of third parties.

One of the justices warned that the ruling could limit the courts’ flexibility to address emerging harms, thus leaving counties with fewer legal tools to recover taxpayer-funded costs associated with responding to large-scale crises. Justice Killough’s concurrence specifically referenced two examples that would now be barred. One example was a company that knowingly distributed contaminated food for use in county facilities like schools and detention centers. Another example was even more complex cases like the impact of social media algorithms on children and mental health.

This decision from the Maryland Supreme Court severely restricts a local jurisdictions from recovering taxpayer funds that are spent in the remediation of harms caused by large corporations that lawfully provide products or services that are found to have significant impacts on public health and safety. While this decision is specific to opioids, the examples Justice Killough describes are effectively barred before their merits have been weighed. Therefore the standing of other claims is weakened by the courts holding in essentially deciding that because a claim like this has never been recognized in Maryland common law then it should not be now or in the future.

So, is the door open for legislative action?

Clearly, with a number of issues raised by this case resulting in a lack of clear statutory support for a broadly-defined “public nuisance” law, one potential avenue would be for the General Assembly to pursue changes and perhaps more clearly articulate their vision for potential litigation on such claims.

This is not a unique outcome from court cases that find, as a component or even central holding of a decision, that a lack of clear statutory direction leaves them unable to support a certain outcome. The separation of powers doctrine in the Maryland Constitution envisions that each branch shall have paths toward its own resolution of political and policy matters.