Lemann on Opioids and Tort Theory

Alex Lemann has posted to SSRN The Opioid Litigation's Challenge for Tort Theory.  The abstract provides:

Tort litigation related to the opioid crisis has spanned several decades and led to tens of billions of dollars in liability. While several important opioid cases remain pending in various stages of litigation, it is now possible to sketch a basic outline of the results: individual plaintiffs sued opioid manufacturers on a variety of theories, seeking redress for the harms resulting from their addictions. They all lost. Following a pattern established by the tobacco litigation thirty years earlier, municipal plaintiffs, including city, county, and tribal governments, then sued opioid manufacturers, distributors, and retailers principally on public nuisance theories. These cases were much more successful (though not universally so), leading to billions of dollars in settlements and judgments.

This Article offers an early assessment of what insights these cases might offer for our theoretical understanding of tort law. Tort theory remains divided between utilitarians and deontologists, and the peculiar results of the opioid litigation—individuals losing and municipalities winning—offer challenges for both camps.

From a utilitarian perspective, the success of the public nuisance cases seems welfare-maximizing. By holding the opioid industry liable for the negative externalities of its otherwise socially beneficial products, public nuisance liability might help induce socially optimal levels of care or curb harmful overconsumption of opioid painkillers. The failure of individual cases is harder to justify on utilitarian grounds, but could perhaps be said to be a reflection of courts’ search for the cheapest cost avoiders of opioid overuse.

The doctrines that determined the outcome of the individual cases seem much more compatible with a deontological account of tort law, turning as they do on moral concepts like autonomy and fault and responsibility. The success of the public nuisance cases, on the other hand, is harder to justify in deontological terms, as the rights and responsibilities at issue are less well-developed.