OPINION: Florida must address ‘public nuisance’ claims

-This Article was Originally Published in the Sarasota Herald-Tribune-

Lawful businesses engaging in lawful conduct may find that they are subject to substantial liability based on an expansion and perversion of the centuries-old legal doctrine of public nuisance.

Prodded by personal injury trial lawyers, some state and local governments are misusing “public nuisance” to manage and increase budget revenues by seeking damages from businesses for injuries to others beyond the control of the businesses. In short, lawful business owners are being wrongfully targeted for taxpayer money and political expedience.

Florida has the fifth-worst legal climate in America, creating a lawsuit abuse tax of $4,442 per family each year. We need to keep Florida moving in the right direction to improve Florida’ legal climate.

It has long been the legislative and regulatory power of state and local governments to identify and enact policies to prevent public nuisances.  In the event an unanticipated public nuisance interferes with a general public right, governments could go to the courts to abate or enjoin the nuisance to protect the common rights of the general public.  An example of such a nuisance is blocking a public bridge or highway.

Historically, the doctrine was not used to secure financial damages for governments; other causes of action are available for money damages based on actual misconduct and specific injury. We are now seeing attempts by personal injury trial lawyers on behalf of governments to expand and redefine these traditional limits.

By making public nuisance claims, governments are avoiding their legislative, policy making and regulatory functions and asking courts to award money damages for problems they claim to be public nuisances.

This is especially true when local governments sue for damages on the basis of public nuisance for an issue that is of a statewide impact. These claims are being fueled by the promise of trial lawyers to these local governments that the suit will significantly create revenue. At the same time, the trial lawyers stand to gain substantial fees on a contingency basis. On the other side of these claims are businesses that are literally in compliance with existing laws and regulations set by those same governments.

Often times the lack of fairness in this misuse of public nuisance is hidden by the public awareness and perception of an existing problem or crisis. This gives the claimant a strategic advantage to usurp the normal requirements of a tort action.

We are seeing this in suits against lawful pharmacies for filling lawful opioid prescriptions. This is not to say there is no problem, but that governments need to step up and regulate, not try to avoid policy making and increase revenues by loosely claiming a public nuisance by all entities involved, even those in compliance with the law.

Fortunately, some state courts are not allowing the misuse of public nuisance claims. Recently, the Oklahoma Supreme Court recognized that a public nuisance claim “went too far” against Johnson & Johnson because such a claim would create liability for a manufacturer of opioids for individual misuse outside of the manufacturer’s lawful control. The court held that such a claim was “impermissibly vague” and would create precedence where “a manufacturer could be held perpetually liable.”

A crisis that should be addressed in the proper manner by government is not an excuse to abuse the court system. If this attempted new application for public nuisance claims is established, then any lawful commercial activity could be at risk for such a claim.

The real public nuisance is the misuse of the doctrine. While bad facts make bad law, an inappropriate expansion of the public nuisance doctrine is destined to lead to an unstable business environment with limitless opportunities for governments to extract dollars from business owners lawfully conducting business.

Mark Wilson is CEO of the Florida Chamber of Commerce.

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