George Nethercutt: Washington state should revise its opioids strategy in light of recent court rulings

By George Nethercutt

Recent events may have Washington state and Attorney General Bob Ferguson rethinking some of their efforts to combat the opioid crisis.

For years, the attorney general has been engaging in litigation against the manufacturers and distributors of legal opioids, arguing that the companies created a public nuisance by “embarking on a massive deceptive marketing campaign.” Unfortunately, the attorney general has little to show for his trouble to date.

If the point is to reduce overdose deaths in the state, these efforts have tragically come up short. Washington state experienced a 38% increase in overdose deaths year over year in 2020, driven in large part by illicit fentanyl. And if the goal is to obtain immediate access to funds to combat the opioid crisis, continuing to pursue court cases that will likely take years to resolve and are underpinned by a legal strategy that was just dealt a significant blow in court seems counterproductive and fraught with risk. Fortunately, there is a better way.

The Oklahoma state Supreme Court, in a 5-1 decision, recently found that a lower court’s “expansion of public nuisance law went too far,” and continued that “Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.” This is bad news for the attorney general, who has previously pointed to Oklahoma’s lawsuit as a rationale to forgo settlements and to instead continue engaging in litigation against the manufacturers and distributors of prescription opioids.

The fact of the matter is, using Washington state’s public nuisance statute to sue the manufacturers and distributors of prescription opioids may be a tempting legal shortcut, but continuing to engage in these lawsuits could ultimately jeopardize funds that could be accessed in Olympia to help combat the opioid crisis. If the attorney general ultimately goes to trial and loses, the state could wind up with nothing. Not only that but expanding the scope of public nuisance could also irreparably harm business in the Evergreen State.

In their majority opinion, justices on the Oklahoma Supreme Court argued that the state’s 1910 public nuisance law was created to address property disputes and that the scope of claims that the law is used to address should be narrow. “Without these limitations,” they noted “businesses have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products.”

The justices then pressed the point by asking “will a sugar manufacturer or the fast food industry be liable for obesity … or will a car manufacturer be liable for health hazards from … air pollution?” In other words, as the U.S. Chamber of Commerce so succinctly put it, expanding the scope of the law in this way could create a “public-nuisance monster” that could “chill business activity.”

Fortunately, there is an alternative legal pathway that exists for Washington state to obtain immediate funds to combat the opioid crisis. It will also spare business the uncertainty of an expanded public nuisance environment.

Several of the companies that Ferguson is suing reached a nationwide $26 billion settlement with a bipartisan group of attorneys general last summer. Forty-two states, as well as Washington, D.C., and five U.S. territories, have already signed on to the compact. While Mr. Ferguson previously declined to opt in to this settlement, he may be wise to reconsider this decision in light of recent events that have dealt his legal arguments a significant blow.

Ultimately, dealing with something as large as the opioid crisis should fall under the purview of the legislative and executive branches. The justices for the Oklahoma Supreme Court in their opinion rightly found that these branches are better equipped than the courts to “balance the competing interests at play in societal problems” and that public nuisance law should not be used to address policy problems. It’s time for Attorney General Ferguson to seriously consider bringing these cases to a close and to refocus his efforts on other places where he can be more effective in helping to combat the opioid crisis.

George Nethercutt represented Washington state’s 5th District in Congress from 1995-2005 and is an attorney.