Abstract
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, public plaintiffs, including city, county, and tribal governments, then filed their own suits, 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 governments 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 curb harmful overconsumption of opioid painkillers. The failure of individual cases, on the other hand, is harder for the utilitarian to justify. From a deontological perspective, the doctrines that determined the outcome of the individual cases are much easier to account for, turning as they do on moral concepts like autonomy, fault, and responsibility. The success of the public nuisance cases, on the other hand, is harder to justify in deontological terms, as public nuisance liability seems to break the connection between wrongdoers and victims that has played a central role in deontological theories of tort. Theorists of both camps, then, will struggle to account for the diverse results of the various phases of litigation related to opioids, presenting a challenge for the elusive goal of a unified descriptive theory of tort law.
Recommended Citation
Alexander B. Lemann,
The Opioid Litigation’s Challenge for Tort Theory,
90 Brook. L. Rev.
1103
(2025).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol90/iss4/3
