IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION; TRUMBULL COUNTY, OHIO ET AL. v. PURDUE PHARMA, L.P., ET AL.
No. 2023-1155
Supreme Court of Ohio
December 10, 2024
Slip Opinion No. 2024-Ohio-5744
DETERS, J.
Certified Question from the U.S. Court of Appeals for the Sixth Circuit, Nos. 22-3750, 22-3751, 22-3753, 22-3841, and 22-3844. Submitted March 26, 2024.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Natl. Prescription Opiate Litigation, Slip Opinion No. 2024-Ohio-5744.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2024-OHIO-5744
IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION;
TRUMBULL COUNTY, OHIO ET AL. v. PURDUE PHARMA, L.P., ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Natl. Prescription Opiate Litigation, Slip Opinion No. 2024-Ohio-5744.]
Torts—Products liability—Public nuisance—Ohio Product Liability Act,
(No. 2023-1155—Submitted March 26, 2024—Decided December 10, 2024.
CERTIFIED QUESTION from the U.S. Court of Appeals for the Sixth Circuit, Nos. 22-3750, 22-3751, 22-3753, 22-3841, and 22-3844.
STEWART, J., concurred in part and dissented in part, with an opinion joined by DONNELLY, J.
DETERS, J.
{¶ 1} We accepted review of a certified question of state law from the United States Court of Appeals for the Sixth Circuit regarding whether
I. BACKGROUND
{¶ 2} The Sixth Circuit Court of Appeals provided the following facts and allegations from which the certified question of state law arises. A group of city and county governments from across the nation, Indian tribes, and other entities have brought actions alleging “that opioid manufacturers, opioid distributors, and opioid-selling pharmacies and retailers acted in concert to mislead medical professionals into prescribing, and millions of Americans into taking and often becoming addicted to, opiates.” In re Natl. Prescription Opiate Litigation, 976 F.3d 664, 667 (6th Cir. 2020). Collectively, these actions make up the multidistrict National Prescription Opiate Litigation pending in the United States District Court for the Northern District of Ohio. One of these actions—brought by two northeast Ohio counties—gave rise to this certified question of state law.
{¶ 3} Plaintiffs Trumbull County and Lake County (collectively, the “Counties“) allege that national pharmaceutical chains, including defendants Walgreens, CVS, and Walmart (collectively, the “Pharmacies“), “created, perpetuated, and maintained” the opioid epidemic by filling
{¶ 4} The Counties pleaded their allegations as a common-law absolute public-nuisance claim, which this court has defined as “an unreasonable interference with a right common to the general public,” Cincinnati v. Beretta U.S.A. Corp., 2002-Ohio-2480, ¶ 8, quoting 4 Restatement of the Law 2d, Torts, § 821B(1), 87 (1979), that “is based on either intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what care is taken,” State ex rel. R.T.G., Inc. v. State, 2002-Ohio-6716, ¶ 59. Invoking the OPLA, the Pharmacies filed a motion to dismiss. The OPLA is, as the name suggests, a statutory scheme governing product-liability claims. See
{¶ 5} The federal district court denied the Pharmacies’ motion to dismiss. It did so based on its prior decision in a separate action within the same multidistrict litigation brought by Summit County, Ohio (the “Summit County Action“), see In re Natl. Prescription Opiate Litigation, 2018 WL 6628898, *12-15 (N.D. Ohio Dec. 19, 2018), determining that it would not reconsider its prior rulings at that time. In the Summit County Action, the federal district court concluded that the OPLA does not abrogate absolute public-nuisance claims seeking relief for harm other than compensatory damages (e.g. equitable remedies). Legislative history heavily influenced the federal district court‘s decision. In particular, the district court considered legislative history surrounding two amendments to the OPLA: the first in 2005 (the “2005 Amendment“), and the second in 2007 (the “2007 Amendment“).
{¶ 6} The 2005 Amendment added
{¶ 7} And the 2007 Amendment, which added “any public nuisance claim” to the definition of “product liability claim” in
{¶ 8} In the Counties’ public-nuisance claim, they seek equitable relief, not compensatory damages. Refusing to reconsider its reasoning from the Summit County Action, the federal district court denied the motion to dismiss. After the case went to trial and a jury rendered a verdict in the Counties’ favor, the Pharmacies reiterated their OPLA-abrogation argument in a motion for judgment as a matter of law. That, too, was denied.
{¶ 9} The Pharmacies appealed. Recognizing that this court has not yet spoken on the proper interpretation of the OPLA in the aftermath of the 2005 and 2007 Amendments, the Sixth Circuit certified a question of state law. We accepted the certification and agreed to answer the following question:
Whether the Ohio Product Liability Act, Ohio Revised Code § 2307.71 et seq., as amended in 2005 and 2007, abrogates a common law claim of absolute public nuisance resulting from the sale of a product in commerce in which the plaintiffs seek equitable abatement, including both monetary and injunctive remedies?
II. ANALYSIS
A. Ohio‘s statutory scheme for product-liability claims
{¶ 10} In 1988, Ohio‘s General Assembly enacted a statutory scheme for regulating product-liability claims:
“Product liability claim” means a claim that is asserted in a civil action and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following:
(1) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product;
(2) Any warning or instruction, or lack of warning or instruction, associated with that product;
(3) Any failure of that product to conform to any relevant representation or warranty.
Former
{¶ 11} Nearly a decade after the statute was enacted, this court interpreted
{¶ 12} Following Carrel‘s limitation of the OPLA‘s abrogating effect, this court expanded opportunities for product-based lawsuits at common law. It did so by endorsing an unorthodox use of the tort of public nuisance in Cincinnati v. Beretta U.S.A. Corp., 2002-Ohio-2480. Public-nuisance suits were historically used to address violations of public rights “connected to real property or to statutory or regulatory violations involving public health or safety.” Id. at ¶ 9. But, in Beretta, this court permitted a public-nuisance suit to proceed based on the manufacture, marketing, distribution, and sale of firearms. Id. at ¶ 7, 16. Relying on the Restatement of the Law Second, this court concluded that public-nuisance law covers “injuries caused by a product if the facts establish that the design, manufacturing, marketing, or sale of the product unreasonably interferes with a right common to the general public.” Id. at ¶ 10.
{¶ 13} Several years later, the General Assembly enacted amendments to the OPLA in an apparent response to Carrel and Beretta. In 2005, an amendment added language to the definition of “product liability claim” to specify that such a claim is “asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code.”
“Product liability claim” also includes any public nuisance claim or cause of action at common law in which it is alleged that the design, manufacture, supply, marketing, distribution, promotion,
advertising, labeling, or sale of a product unreasonably interferes with a right common to the general public.
(Emphasis added.) Am.Sub.S.B. No. 117, 151 Ohio Laws, Part II, 2274, 2279 (codified at
B. The statutory definition of “product liability claim” includes public-nuisance causes of action regardless of the kind of relief requested
{¶ 14} Much of the debate between the parties turns on how the phrase “also includes” functions in the paragraph added by the 2007 Amendment. According to the Counties, “also includes” is not synonymous
{¶ 15} The Pharmacies disagree with the Counties’ circumscribed construction of the OPLA. In their view, the phrase “also includes” expands the definition of product liability. It creates a second category of product-liability claims—public-nuisance claims based on the design, manufacture, supply, marketing, distribution, or sale of a product—that are abrogated by the OPLA. To reach this interpretation, the Pharmacies explain that “includes,” while sometimes serving an illustrative function, may also perform additive duties. Divining the appropriate meaning in a particular circumstance is a question of context, they say, and the General Assembly‘s choice to combine “also” with “includes” establishes that the additive meaning was intended.
{¶ 16} The Pharmacies have the better argument. Narrowly construing “also includes any public nuisance claim” to mean only those public-nuisance claims that satisfy the first paragraph of (A)(13) reads “also” out of the statute. It is true that “include” often serves to introduce a non-exhaustive list of examples of parts of a previously introduced whole. See, e.g., Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 132 (2012). But the General Assembly did not merely say that product-liability claims “include” public-nuisance claims; it said that they “also include[]” public-nuisance claims.
{¶ 17} “Also” is additive. That is inherent in the meaning of “also,” which is defined as “in addition.” Webster‘s Third New International Dictionary (2002). Modifying “includes” with “also” thus signals an expansive, not illustrative, use of the term. See Miller v. Youakim, 440 U.S. 125, 136-137 (1979) (holding that the phrase “also include” was “language that unquestionably expand[ed] the scope” of the defined term); D&A Rofael Ents., Inc. v. Tracy, 1999-Ohio-256, ¶ 16 (interpreting “also includes” as expanding a statutory definition).
{¶ 18} In D&A Rofael Ents., this court recognized that the General Assembly‘s use of “also includes” enlarged a statutory definition. At issue was whether a mall food court was part of the “premises” of several restaurants in the mall for tax purposes. D&A Rofael Ents. at ¶ 9. Resolution of the issue turned on the statutory definition of “premises,” which contained two parts. The first part of the statute defined “premises” as “any real property . . . upon which any person engages in selling tangible personal property at retail or making retail sales.” Id. at ¶ 15, quoting
{¶ 19} The cases cited by the Counties do not require a different result. In those cases, the statutes at issue did not use “also” to modify “include.” See In re Hartman, 2 Ohio St.3d 154 (1983) (Interpreting former
{¶ 20} The Counties draw our attention to Cleveland Bar Assn. v. Misch, 1998-Ohio-413, but this case is no help to them. In Misch, this court explained that “the practice of law is not limited to appearances in court, but also includes giving legal advice and counsel and the preparation of legal instruments and contracts.” (Emphasis added.) Id. at ¶ 13. In Misch, the Counties say, this court used the phrase “also includes” to clarify the scope of the meaning of the phrase “practice of law” and so that‘s what the 2007 Amendment did, too. Not so.
{¶ 21} True, this court in Misch used the phrase “also includes” to clarify the definition of another phrase. What‘s important, however, is how the phrase “also includes” accomplished that task. The phrase did not introduce a list of additional acts already subsumed by the phrase “appearances in court.” Had it served such a function, the Counties might have a point. Instead, “also includes” was used to show that the phrase “practice of law” encompasses acts that are different from, and additional to, “appearances in court“—namely, “giving legal advice and counsel” and “preparing[ing] . . . legal instruments and contracts.” Id. at ¶ 13. And that is precisely how “also includes” functions in
{¶ 22} Because “includes” has been used in its additive sense, public-nuisance claims are a second, independent category of product-liability claims. This means that the confines of the first category of product-liability claims are of no moment when determining the bounds of the second. Instead, the parameters of the second category must be drawn from the second paragraph of
{¶ 23} The second paragraph says that “any public nuisance claim or cause of action at common law in which it is alleged that the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling, or sale of a product unreasonably interferes with a right common to the general public” is a product-liability claim.
C. The OPLA does not limit product-liability claims to public-nuisance claims based on product defects
{¶ 24} The Counties advance a similar statutory-interpretation argument with
{¶ 25} The Counties also maintain that other provisions of the OPLA demonstrate that it covers only common-law product-liability claims that arise from harm caused by a defective product. Each of the OPLA‘s statutory analogs for common-law theories involve product defects, the Counties insist, and so the meaning of “product liability claim” as defined by
{¶ 26} What‘s more, the OPLA‘s limitation on product-liability theories to those involving a defect by no means demands the conclusion that the definition of “product liability claim” is equally limited. Another possibility is that “product liability claim” is defined broadly enough to eliminate all product-based common-law claims while the rest of the OPLA is narrowly tailored to resurrect only some of the common-law theories into statutory form. Such an understanding of the OPLA is consistent with the plain text of
{¶ 27} We hold, therefore, that a public-nuisance claim need not involve allegations of a product defect to satisfy the definition of “product liability claim.”
D. The OPLA expressly abrogates all common-law public-nuisance claims
{¶ 28} The remaining puzzle pieces easily fall into place following the conclusion that all product-based public-nuisance claims are product-liability claims. “[A]ll common law product liability claims or causes of action” are abrogated by
{¶ 29} The Counties nonetheless insist that public-nuisance claims seeking equitable relief are not abrogated by the OPLA. Adding common-law claims seeking equitable relief to the definition of product-liability claim only to then bar the use of such causes of action is, in the Counties’ view, incoherent. We are not convinced. The OPLA already abrogated common-law product-liability claims following the 2005 Amendment. Further amending the statute to clarify that product-liability claims disguised as public-nuisance claims, in the mold of the claim this court permitted in Beretta, is not incoherent.
{¶ 30} The Counties also suggest that the General Assembly is prohibited from abolishing a common-law cause of action without providing a reasonable statutory replacement. For this, they cite the concurring opinion from Mominee v. Scherbarth, 28 Ohio St.3d 270 (1986). There, the concurring opinion stated that “[w]here a right or action existed at common law at the time the Constitution was adopted, that right is constitutionally protected, by the access-to-the-courts provision, from subsequent legislative action which abrogates or impairs that right
{¶ 31} The plain language of the OPLA abrogates product-liability claims, including product-related public-nuisance claims seeking equitable relief. We are constrained to interpret the statute as written, not according to our own personal policy preferences. For this reason, we answer the certified question in the affirmative: all public-nuisance claims alleging “that the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling, or sale of a product unreasonably interferes with a right common to the general public” have been abrogated by the OPLA, including those seeking equitable relief.
E. Resort to legislative history to twist the plain meaning of the OPLA is improper
{¶ 32} Notwithstanding the plain text of
{¶ 33} It is also worth noting that the Counties’ arguments about the legislative history are not only inconsistent with the plain text of
{¶ 34} We recognize that the opioid crisis has touched the lives of people in every corner of Ohio. The devastation experienced by these private citizens, individually and collectively, undoubtedly has far-reaching consequences for their communities and for the State as a whole. Creating a solution to this crisis out of whole cloth is, however, beyond this
F. The Counties’ claims are based on the “sale” of a product
{¶ 35} One final argument from the Counties that we must address is that their claims are based on the Pharmacies’ dispensing of opioids, not the “design,” “manufacture,” “marketing,” “promotion,” “advertising,” “labeling,” “supply,” “sale,” or “distribution” of opioids. See
III. CONCLUSION
{¶ 36} For the foregoing reasons, we answer the certified question of state law in the affirmative.
So answered.
STEWART, J., joined by DONNELLY, J., concurring in part and dissenting in part.
{¶ 37} I concur in the majority‘s analysis of this certified question except that I would hold that public-nuisance claims seeking equitable relief are not abrogated by the Ohio Product Liability Act,
{¶ 38} Under the plain language of the OPLA, a product-liability claim is “a claim or cause of action that is asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory damages.” (Emphasis added.)
{¶ 39} Specifically, the Counties sought and received equitable relief in the form of money to be used for abatement of the nuisance, i.e., funds to treat issues caused by the oversupply of opioids. Petitioners Walgreens, CVS, and Walmart (collectively, the “Pharmacies“) argue that the relief the Counties sought and that the federal district court awarded went too “far beyond the well-established scope of equitable abatement under Ohio law” for it to be fairly considered equitable relief and, as such, “is in fact akin to compensatory damages.” But this argument is unavailing. Any award to abate a public nuisance like the opioid epidemic would certainly be substantial in size and scope, given that the claimed nuisance is both long-lasting and widespread. But just because an abatement award is of substantial size and scope does not mean it transforms it into a compensatory-damages award.
{¶ 41} The Pharmacies and the majority ignore the plain language of the statute to their error. As Judge Polster noted in his decision in a sister case, nothing in either the 2005 or 2007 OPLA amendments changed the meaning of the term “product liability claim” to exclude public-nuisance claims seeking only equitable relief. See id. at *13-14. In deciding this certified question of state law, this court need look no further than the explicit words the General Assembly has chosen (and has not changed) in
Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., David C. Frederick, Minsuk Han, Ariela M. Migdal, Travis G. Edwards, Kathleen W. Hickey, Daren G. Zhang, and Kelley C. Schiffman; Lanier Law Firm, W. Mark Lanier, and M. Michelle Carreras; Plevin & Gallucci Co., L.P.A., and Frank L. Gallucci; Thrasher Dinsmore & Dolan, L.P.A., and Leo M. Spellacy, Jr.; Napoli Shkolnik, Hunter J. Shkolnik, and Salvatore C. Badala; Spangenberg Shibley & Liber, and Peter H. Weinberger, for respondents.
Sullivan & Cromwell L.L.P., Jeffrey B. Wall, and Morgan L. Ratner, for Petitioners Walgreens Boots Alliance, Inc., Walgreen Co., and Walgreen Eastern Co., Inc.
Jones Day, Noel J. Francisco, John M. Majoras, Anthony J. Dick, and James Saywell, for Petitioner Walmart Inc.
Munger, Tolles & Olson L.L.P., Donald B. Verrilli, Jr., and Ginger D. Anders, for Petitioners CVS Pharmacy, Inc., Ohio CVS Stores, L.L.C., CVS Tennessee Distribution, L.L.C., CVS RX Services, Inc., CVS Indiana, L.L.C.
Shook, Hardy & Bacon L.L.P., Philip S. Goldberg, and Victor E. Schwartz; Dinsmore & Shohl L.L.P., Frank C. Woodside III, and Gregory P. Mathews, in support of petitioners for amicus curiae Product Liability Advisory Council.
Alston & Bird L.L.P., Brian D. Boone, D. Andrew Hatchett, and Ethan J. Bond, in support of petitioners for amici curiae Chamber of Commerce of the United States of America and the American Tort Reform Association.
Dickinson Wright P.L.L.C., Terrence O‘Donnell, Kevin D. Shimp, and David A. Lockshaw, Jr., in support of petitioners for amici curiae The Ohio Chamber of Commerce and Ohio Alliance for Civil Justice.
The Buckeye Institute, Jay R. Carson, and David C. Tryon, in support of petitioners for amicus curiae the Buckeye Institute.
Murray Murphy Moul + Basil L.L.P., and Jonathan P. Misny, in support of respondents for amicus curiae the Cleveland Building & Construction Trade Council.
Allen Stovall Neuman & Ashton L.L.P., and Rick L. Ashton, in support of respondents for amici curiae County Commissioners Association of Ohio, Ohio Association of County Behavioral Health Authorities, Ohio Municipal League, Ohio Township Association, Ohio Mayors Alliance, and Fraternal Order of Police of Ohio, Inc.