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In addition to the Covid-19 pandemic's devastating human costs, its financial toll will be staggering. Despite help from Washington, local governments, individuals, and health systems will undoubtedly explore other ways to recover the costs of a public health disaster they have no choice but to fight.
Lawsuits filed in state and federal courts against Amazon, McDonald's, and Smithfield Foods suggest that litigation involving another public health crisis—opioid addiction—may offer those potential plaintiffs a tempting but tenuous model for shifting some of the cost of the pandemic to private companies. This article describes the use of public nuisance lawsuits to address other recent harms to public health, provides an overview of public nuisance suits filed so far in relation to the pandemic, and offers guidance on the likely next targets of public nuisance litigation as the coronavirus continues to take its toll.
Over the past several years, more than 3,000 plaintiffs—as varied as state governments, counties, cities, Native American tribes, hospitals, physicians, and patients, most represented by private plaintiffs’ counsel—have filed opioid-related suits in state and federal court. Citing the opioid epidemic as an unprecedented public-health crisis, governments and private parties have sought to recover the past and future costs of health care, treatment facilities, law enforcement, and more. They seek billions of dollars from the pharmaceutical manufacturers, distributors, and retailers comprising the FDA- and DEA-regulated supply chain for prescription opioid medications. The litigation has become one of the largest and most complex constellations of lawsuits in U.S. history.
Those plaintiffs have pressed a largely untested legal theory for imposing the cost of a widespread health-care crisis on a segment of private industry: public nuisance. After recognizing the difficulty in proving direct causation necessary under traditional theories of liability, plaintiffs in many instances shifted their emphasis to relief for alleged aggregate harms to the community on a theory of public nuisance.
Traditionally, public nuisance claims were reserved for interference with public rights involving the use of land. Plaintiffs have since brought claims, with varying degrees of success, against tobacco companies and manufacturers of other products alleged to be inherently noxious. But many states have broadly worded public nuisance statutes and common law doctrines that plaintiffs contend allow claims against any person or entity that “interferes with” the public health in myriad ways.
The opioid plaintiffs’ innovative approach to public nuisance law has gained traction in opioid lawsuits across the country. To take just one example, in April 2020, the federal court managing the multidistrict opioid litigation ordered a new bellwether track to focus solely on public nuisance claims against chain pharmacies. See In re Nat'l Opiate Litig., 17-MD-2804 (N.D. Ohio Apr. 16, 2020).
Despite its uncertain foundations, the expansion of public nuisance law heralded by the opioid litigation may impact companies whose Covid-19 response is perceived as inadequate. At first, the parallels between opioid-related litigation and Covid-19 may not be apparent. Some have alleged that opioid addiction is a human-made phenomenon, while the coronavirus was not “created” by any private actor.
But the opioid lawsuits sweep in far more companies than could have plausibly started an “opioid epidemic” in the first place. Those cases now name as defendants virtually all of the major manufacturers of legal opioid medications in the last 20 years, pharmaceutical distributors responsible for distributing more than 85% of all medicines in the U.S., and every major pharmacy chain in the country—each because they allegedly contributed in some way to a “public nuisance.”
Under the opioid plaintiffs’ theory, public nuisance does not require proof that any one company caused any one individual's addiction or overdose—only that their conduct contributed in the aggregate to increasing rates of addiction, including by failing to take adequate measures to prevent it.
Might a company that contributes to increasing rates of Covid-19 by reopening its place of business or failing to take adequate precautions when doing so be held liable on a similar theory? Recent lawsuits suggest some believe the answer is yes.
In Rural Cmty. Workers All. v. Smithfield Foods, an employee of a Missouri meatpacking plant and a non-profit organization representing workers in rural communities took Smithfield Foods to court over its Covid-related safety measures. Case No. 20-cv-06063 (W.D. Mo. 2020). They sought an injunction requiring Smithfield to implement several new measures to better protect its employees, such as offering additional breaks and developing a contact-tracing program. But the plaintiffs’ allegations were not limited to harms that any one of them had suffered personally. Rather, they argued that Smithfield's failure to provide a safe work environment constituted a public nuisance affecting the entire community because it would cause “increased community spread” in the plant and in the cities adjacent to the plant.
In May, the federal court dismissed the complaint against Smithfield on procedural grounds. But the case proved what previously was mere speculation: The theory of public nuisance liability for “epidemics” could make the jump from opioids to Covid-19.
Within two weeks, other suits made clear the phenomenon was taking hold. Chicago-area McDonald's workers sued the fast-food chain in Illinois state court, alleging their restaurants had failed to provide adequate protective equipment, hand sanitizer, and safety training and thereby constituted a public nuisance. See Massey v. McDonald's Corp., Case No. 2020CH04247 (Cir. Ct. Cook Cty. Ill. filed May 19, 2020). On June 3, 2020, the presiding judge rejected McDonald's attempt to dismiss the putative class action using the same primary-jurisdiction argument that won in Smithfield.
The same day, Staten Island Amazon workers filed their own public nuisance suit, alleging “sloppy” contact tracing and a workplace culture that prioritizes productivity over health and hygiene. See Palmer v. Amazon.com, Inc., Case No. 20-cv-02468 (E.D.N.Y. filed June 3, 2020). According to the lawsuit, which mainly seeks declaratory and injunctive relief, one of the plaintiffs contracted coronavirus at the Amazon warehouse, and shortly thereafter, her cousin, with whom she lived, displayed Covid-19 symptoms and died.
Covid-19's domino effect of harms, affecting nearly every walk of life and every aspect of commercial and governmental operations, may translate into lawsuits looking beyond individual injuries. Like the opioid litigation, those suits may assert liability—and demand recovery—for aggregate harms to the community, including municipal expenses, increased health care costs, and lost economic productivity. And they may benefit from the looser understanding of causation urged by opioid plaintiffs, which allows for liability when conduct correlates with aggregate increases in the health problems at issue.
Smithfield was preliminarily able to avoid liability for community spread of the virus in part because of the fact that no cases had been uncovered at its plant. Future defendants may not be so fortunate. In addition to the meat and fast-food industries, media reports suggest that other companies with extensive reach and deep pockets may be targeted by plaintiffs asserting public nuisance claims arising out of the coronavirus pandemic. To name just a few examples:
• Media reports have suggested that some blame airlines for allowing the virus to spread among passengers and crew.
• Retail stores, including large chains, have already been devastated by the pandemic, but may face additional challenges as plaintiffs seek to hold them accountable for failing to respond quickly enough—or, alternatively, for reopening too quickly or without appropriate safeguards.
• E-commerce firms face similar risks. Amazon already faces a lawsuit related to safety measures in its warehouses. Other retailers and shipping companies called on to meet increased online demand may likewise face heightened health and safety risks that could translate into legal claims.
To the extent that private companies are alleged to be responsible for even a partial share of the spread of Covid-19, the potential costs could be staggering—and will only increase for the foreseeable future. States and municipalities face multi-billion dollar losses in tax revenue. The cost to the world economy is currently estimated to be in the trillions of dollars, and counting. Costs to hospitals and the unemployed grow by the minute.
Barring efforts to curb broad application of the public nuisance doctrine, it is likely only a matter of time before plaintiffs begin applying strategies from the opioid litigation to the newest public health crisis. New Covid-related public nuisance suits will only strengthen calls for curtailing the public nuisance doctrine's newly expansive reach. Those suits will also strengthen the increasingly urgent calls of advocates for legislative protection of businesses from Covid-related suits.
In the meantime, companies should work with their counsel to take appropriate measures to reduce potential exposure. Those measures will be critical not only to preserving the health and safety of their employees, their customers, and their families, but to guarding against liability for the spread of the virus in their broader community, as well.