Public Nuisance & Pharma

A presenter this morning mentioned this student Note [PDF] about the settlement of Oxycontin litigation in West Virginia, where, among many claims, the plaintiff asserted that improper marketing of the drug created a public nuisance.  The case was settled without creating any law on the issue, apparently, but it’s another step in efforts to make products liability cases into public nuisance cases. 

The presenter also mentioned a Montana case, Paulsen v. Monsanto, alleging public nuisance in a PCB case, where the court denied summary judgment — I can’t find that order online,so if anyone has it, send it along.  And of course the Rhode Island lead pigment case is the (largely incoherent) elephant in the corner.  (I know, elephants are rarely coherent.)

In any event, the Oxycontin case made me wonder if we’ll start seeing public nuisance claims for suits related to off-label marketing in, for instance, the Zyprexa and other anti-psychotic claims.  Given the, shall we say, lighter standards of proof for a nuisance claim, it might well be worth a try.

Addendum: I should have mentioned — I don’t think those sort of claims should be public nuisance claims for a variety of reasons.  Just observing that the trend, after a long time of failures, seems to be towards broadening the claim to capture various conduct that for a number of reasons can’t be reached under traditional products liability claims.