On May 1, 2023, the NAM filed an amicus brief urging the Alabama Supreme Court to review and reverse a lower court order extending Alabama’s law of public nuisance to the marketing and distribution of legal and highly-regulated products—FDA-approved medications. In this case, Ex Parte Janssen Pharmaceuticals, Inc., Alabama hospitals sued the manufacturers and distributors of opioid medications in Alabama state court alleging that the defendants’ activities created a public nuisance—the opioid epidemic—that caused them to incur increased operational costs. Notably, however, public nuisance law in Alabama—as in other states—is a land and water use cause of action, directed at resolving local disturbances that interfere with the right of the public to use a public road, communal space, or local waterway.
We argue in our brief that the trial court’s decision departs from long-standing public nuisance liability principles and threatens open-ended, industry-wide liability for a variety of products that may also have foreseeable risks or inherent externalities, including pharmaceuticals, oil and gas, and household chemicals. This case is important for all manufacturers because if the trial court’s ruling can stand, manufacturers could be subject to industry-wide liability in Alabama for selling and marketing products with known risks of harm with few if any defenses.
Unforturnately, on June 2, 2023, the Alabama Supreme Court denied the request for review.