Supreme Court of the United States

Home , Federal common law

No. 18-102

IN THE SUPREME COURT OF THE UNITED STATES

State of Lincoln.,

Petitioner

Chase Pharma Inc., et al,.

Respondent

On Petition for Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit

BRIEF FOR PETITIONER

Date: September 19, 2019 Team #2803 Counsel for Petitioner Oral Argument Requested

QUESTIONS PRESENTED

I. This Court has held that there must be judicially discoverable and manageable standards in order to adjudicate a controversy. The State of Lincoln alleges that Chase Pharma has caused an opioid crisis in the State. This crisis has resulted in substantial costs, including treatment for addiction, increased law enforcement, and social services. Are these public nuisance costs a justiciable controversy?

II. Lincoln law defines a public nuisance as an unreasonable interference with a right common to the general public. Lincoln alleged that Chase Pharma trivialized the risks of addiction by making false assertions, confusing symptoms of addiction with a “condition” requiring higher doses of opioids, and targeting groups predisposed to addiction. Lincoln contends that Chase’s marketing approach interferes with public health, welfare, and safety. Under these facts, did the State of Lincoln state a claim for public nuisance?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...... i

TABLE OF AUTHORITIES…………………………………………………………..iii

OPINIONS BELOW ...... vi

STATEMENT OF THE CASE ...... 1 A. Statement of the Facts ...... 1 B. Procedural History ...... 4

SUMMARY OF THE ARGUMENT ...... 5

ARGUMENT ...... 7 I. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DISMISSAL BECAUSE THE POLITICAL QUESTION DOCTRINE DOES NOT BAR LINCOLN’S PUBLIC NUISANCE CLAIM…………………………………………………………………………………...………………...7

A. This Court’s Most Recent Interpretation of The Political Question Doctrine Declares That Only Textual Constraints Should Be Considered …..………………………………………9

B. Well-Established Judicial Standards From Over A Century Of Public Nuisance Law Provide This Court With Direction For This Case…………………………………………………………………………..…...... 11

C. Because Tort Law Principles Provide The Necessary Judicial Guidance, Lincoln’s Case Must Be Tried……………………………………………………...……………………………12

D. This Court Must Hear Lincoln’s Public Nuisance Claim Because The Claim Does Not Involve Policy Determinations And Current Legislature Fails To Provide An Adequate Remedy…………………………………………….…………………………………………………….14

E. The Vanishing Concept Of The Political Question Doctrine Is Irrelevant In Lincoln’s Case And Should Not Influence This Court’s Decision……..……………………………………16

II. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DISMISSAL BECAUSE THE STATE OF LINCOLN’S COMPLAINT SATISFIES THE PLAUSIBILITY STANDARD FOR PUBLIC NUISANCE …………………………………….18

A. The State Of Lincoln Successfully Alleged All Elements Under The Restatement…………………………………………………………………………………………….19

i. Public Right …………………………………………………………………………..20 ii. Unreasonable Interference………………………………………………………….25 iii. Control…………………………………………………………………..……………..28

CONCLUSION ...... 32

TABLE OF AUTHORITIES U.S. Supreme Court Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) (2002)……………………………………………………………18 Baker v. Carr, 369 U.S. 186 (1962) (2002)………………………………………………7-8, 13-14, 17 Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668 (1996) ……………………………………………………………………16 Davis v. Bandemer, 478 U.S. 109 (1986) ……………………………………………………………………17 Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) ……………………………………………………………………12 Georgia v. Tenn. Copper Co., 237 U.S. 474 (1915) ……………………………………………………………………12 Georgia v. Tenn. Copper Co., 240 U.S. 650 (1916) ……………………………………………………………………12 Illinois v. Milwaukee, 406 U.S. 91 (1972) ………………………………………………………………….15-16 Marbury v. Madison, 5 U.S. 137 (1803) ………………………………………………………………………...7 Massachusetts v. Laird, 400 U.S. 886 (1970) …………………………………………………………………..9-10 Missouri v. Illinois, 180 U.S. 208 (1901) …………………………………………………………………….11 Missouri v. Illinois, 200 U.S. 496 (1906) …………………………………………………………………….11 Nixon v. United States, 506 U.S. 224 (1993) …………………………………………………………………….16 Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) …………………………………………………………………….17 Quinn v. Millsap, 91 U.S. 95 (1989) ……………………………………………………………………….16 Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) ……………………………………………………………………..16 U.S. Dep't of Commerce v. Montana, 503 U.S. 442 (1992) ……………………………………………………………………16 United States v. Munoz-Flores, 495 U.S. 385 (1990) ……………………………………………………………………16 Vieth v. Jubelirer, 541 U.S. 267 (2004) ……………………………………………………………..8-10, 16 Zivotofsky v. Clinton, 566 U.S. 189 (2012) ……………………………………………………………9-10, 16

iii

U.S. Appellate Court Cases Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, (3d.Cir. 2001) ………………………………………………………….30 City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, (3d.Cir. 2002)…………...... 30-31 Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009)……………………………………………………………7 Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009)……………………………………………7,1 1-12, 14-15 Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione, etc., 937 F.2d 44 (2nd Cir. 1991)……………………………………………………….13-14 McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir. 2007)………………………………………………………16

U.S. District Court Cases Seward City v. Blaine, 233 Linc. 3d 1008 (1998)………………………………………………………………18 State ex rel. Morrisey v. AmerisourceBergen Drug Corp., 2014 WL 12814021 (W.Va.Cir.Ct.)………………………………………….20-21, 23 State v. Lead Industries, Ass’n, Inc., 951 A.2d 428 (R.I. 2008) ……………………………………………………..24-26, 30

State Court Cases Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002)…………………………………………………19-20, 28 City of Boston v. Smith & Wesson Corp., 2000 WL 1473568 (Mass. Super. July 13, 2000)……………………………….21-23 City of Chicago v. Beretta U.S.A.Corp., 821 N.E.2d 1099, (Ill. 2004)………………………………………………24-26, 28-29 City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, (Ind. 2003)………..………………………………………..20, 25-26 In re Lead Paint Litigation, 924A.2d 484, (N.J. 2007)………………………………………………………………28 People v. CanAgra Grocery Products Co., 227 Cal.Rptr.3d 499 (App. 6thD. Cal. 2017) ……………………...20-22, 26-28, 30 State ex rel. Jennings v. Purdeu Pharma L.P., 2019 WL 446382 (Del.Super. Feb. 4, 2019)……………………………….24, 28, 30 State of Oklahoma v. Purdue Pharma L.P., et. al., No. CJ-2017-816 (Okla.Dt.Ct. Cleveland Co. Aug. 26,.2019)………..20-21, 23-24 Thomas ex rel. Gramling v. Mallett, 701 N.W.2d 523 (Win. 2005)…………………………………………………………..28

State Statutes Linc. Stat. 54-133 (2018)……………………………………………………………………...18

Secondary Sources Am. Jur.2d Nuisances § 39 (2002)…………………………………………………………..20 Hamons, Nathan R., Addicted To Hope: Abating The Opioid Epidemic and Seeking Redress From Opioid Distributors For Creating A Public Nuisance, 121 W.Va.L.Rev. 257,…………………………………………………………………….19-20 Jill Jaffe, The Political Question Doctrine: An Update in Response to Recent Case Law, 38 Ecology L.Q. 1033 (2011)…………………………………………...10, 13, 17 Restatement (Second) of Torts § 821B (1979)………………………..13, 18, 19-21, 25, 28 Restatement (Second) of Torts § 834 (1979)……………………………………………….28 Tipps, Peter, Controlling The Lead Paint Debate: Why Control Is Not An Element Of Public Nuisance. 50 B.C.L.Rev. 605 (2009)………………………………………..28. Zachory Baron Shemtob, The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual--Prudential Paradigm, 104 Geo. L.J. 1001 (2016)…………………………………………………………………………..8-9, 10, 16

Constitutional Provisions Article III, § 1, cl. 1…………………………………………………………………………….10

Other Authorities Federal Rule of Civil Procedure 8(a)(2)……………………………………………………..18 Federal Rule of Civil Procedure 12(b)(6)……………………………………………………..7

OPINIONS BELOW

The decision and order of the District Court for the District of Lincoln is unreported and contained in the Record. (R.) at 1. The decision and order of the United States Court of Appeals for the Twelfth Circuit also are unreported, and available in the Record. (R.) at 16.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article III, § 1, cl. 1 Linc. Stat. 54-133 (2018)

STATEMENT OF THE CASE

This case concerns the alleged opioid crisis caused by Chase Pharma

Inc., et al., (“Chase”) which created a public nuisance in the State of Lincoln.

Lincoln alleges the defendant’s sales and marketing practices have unreasonably interfered with the common rights of Lincoln Citizens’, and in hopes to rectify the crisis and protect the citizens’ rights, Lincoln has brought this suit against Chase Pharma.

A. Statement of the Facts

Prior to the 1990s, the general practice within the medical profession was to limit the use of opioids to the treatment of short-term acute pain, pain associated with recovery from surgery or treatment for cancer, and end-of-life care. (Clerk’s Record

(“R.”) at 2, Agreed Statement of Undisputed Facts). Unfortunately, the use of opioids expanded and caused a number of deaths in the State of Lincoln and other states. Id. at 2. In 2016 alone, over 2000 deaths in Lincoln were attributed to opioid use. Id. In addition, Lincoln’s Bureau of Prisons estimates that it is providing opioid addiction treatment annually to over 3200 inmates state-wide; and the hospitals report that they see dozens of overdose patients on a weekly basis, as well as babies born addicted as a result of their mother’s opioid drug use. Id. For the foregoing reasons, Governor

Edwin Stanton declared a state of emergency in Lincoln on January 23, 2017. Id.

As part of its response to the opioid crisis, Lincoln brought this suit against

Chase Pharma, Inc., and a number of other prescription drug manufacturers whose medications contained hydrocodone, oxycodone, fentanyl, codeine and other opioids, alleging they have created a public nuisance in the State of Lincoln. Id. Lincoln

alleges the defendant’s sales and marketing practices have interfered with Lincoln citizens’ common rights to public health, welfare, and safety and created an apprehension of danger to person and property from the adverse effects addiction has had on their communities. Id. The State more specifically alleges that over the past two decades Chase Pharma and other pharmaceutical companies engaged in a sophisticated and well-funded campaign to persuade doctors to prescribe opioids for the treatment of chronic pain, despite the medical professions’ discouragement of prescribing opioids to treat chronic pain, due to concerns about their effectiveness and the risk of addiction. Id. The State alleges that, to overcome this reluctance, the defendants and their agents knowingly made a number of false assertions about the safety of their opioid drugs and downplayed the risks of addiction from them. R. at 3.

The defendants assured members of the medical profession through direct marketing by branded advertisements, statements by sales representatives, and the funding of unbranded advertising in journal articles and presentations, that opioids were safe and effective for treatment of non-malignant chronic pain. Id. Furthermore, the defendants assured doctors that the risk of addiction is low when opioids were prescribed for the treatment of chronic pain, and that the signs of addiction were symptoms of a condition they called “pseudoaddiction,” which they claimed was undertreated pain that required higher doses of opioids. Id. The defendants claimed that opioids could be safely prescribed for patients who were predisposed to addiction because precautions such as screening for risk addiction, discussions with patients, and drug testing, would enable doctors to detect potential addiction. Id. The defendants also claimed that their medications were formulated to contain certain

features they identified as abuse-deterring; and distinguished between physical dependence and opioid addiction, and contended that dependence was less serious than actual addiction. Id. Further, the defendants claimed the risks of non-opioid pain relievers such as NSAIDs were higher than what the Federal Drug Administration

(“FDA”) and the Center for Disease Control (“CDC”) have identified. R. at 4.

The defendants point out that their products are regulated and approved by the FDA and the Drug Enforcement Administration (“DEA”). Id. However, according to Lincoln, the defendant’s marketing campaign caused doctors to prescribe opioids in large quantities and for treatment purposes that were dangerous, ineffective, threatened public health and safety, and lead to addiction from long-term administration. Id. In addition, the defendants were identifying and targeting certain providers, such as primary care doctors, who were more likely to treat patients with chronic pain. Id. The targeted patients were veterans and elderly patients who were more likely to suffer from chronic pain. Id. Even though the defendants knew the risks associated with long-term opioid use were greater for those groups than for the general population, they continued to target them. Id.

As a result, Lincoln incurred substantial costs in order to treat the effects of addiction and overdoses. Id. Lincoln also spent additional money on law enforcement because of increased criminal activity by opioid drug dealers and abusers, and on social services provided to families affected by the crisis. Id. The economic cost of opioid addiction in Lincoln amounts to billions of dollars annually. Id.

B. Procedural History

On April 13, 2017, Lincoln filed suit against Chase Pharma and a number of other pharmaceutical companies, who manufacture opioid medications, alleging the defendants caused an opioid crisis that is a public nuisance in Lincoln. R. at 5.

Lincoln claims they are entitled to equitable remedies and damages for the economic costs Lincoln has expended in response to the nuisance. R. at 1. In addition, Lincoln seeks abatement of the nuisance. Id.

Chase removed this case to This Court on April 21, 2017 on the basis of diversity jurisdiction under 28 U.S.C.§ 1332 and removal jurisdiction under 28 U.S.C.

§ 1441. R. at 5. Then, on April 28, 2017, Chase filed their Motion to Dismiss, asserting two grounds: (1) Lincoln’s claims raise a nonjusticiable political question and (2)

Lincoln has failed as a matter of law to state a claim of public nuisance. Id. at 5. The

Lincoln District Court agreed and granted Chase’s Motion to Dismiss. Id.

From that Order, Lincoln filed a petition for writ of certiorari to The Supreme

Court of the United States. R. at 26. The Supreme Court granted certiorari on these limited questions: (1) Whether the State of Lincoln’s public nuisance claims state a nonjusticiable political question; (2) Whether the State of Lincoln failed to state a claim for public nuisance for the reasons set forth by the lower courts in this case. Id.

SUMMARY OF THE ARGUMENT

The Supreme Court should reverse the Twelfth Circuit Court’s Motion to

Dismiss because Lincoln’s claim does not raise a non-justiciable political question and

Lincoln has adequately stated its public nuisance claim.

I. Political Question Doctrine

The political question doctrine provides that the judiciary will not adjudicate certain controversies that are better fit for the political branches. According to This

Court’s most recent interpretation of the doctrine, a claim should only be dismissed on the grounds of a political question if textual restraints, derived from the Constitution, require so. These are not implicated in Lincoln’s case. Well-established principles from public nuisance and tort law provide the necessary guidance to try Lincoln’s case. Lincoln’s claim does not involve policy determinations, and current legislature fails to provide an adequate remedy. Because its public nuisance claim does not involve a political question, Lincoln should be given the opportunity to be heard.

II. Public Nuisance

A public nuisance is an unreasonable interference with a right common to the general public. A nuisance is asserted when there is an interference that is so unreasonable to a public right, common to the community at large, that it creates a significant effect upon the public right. Lincoln successfully stated a claim of public nuisance because it asserted a public right to be free of danger to person and property from adverse effects of addiction on the community. Further, the interference was made unreasonable because of the deceptive practices taken by the Respondents.

Finally, even though Lincoln asserts that the Respondents maintained control of the

nuisance, control is not a necessary element to succeed on a public nuisance claim.

Because Lincoln successfully stated a claim of relief, This Court must deny the

Respondent’s Motion to Dismiss.

ARGUMENT

The Twelfth Circuit Court erred in dismissing Lincoln’s public nuisance claim because (1) the public nuisance claim does not involve a political question and (2)

Lincoln has adequately stated its public nuisance claim. Accordingly, the Twelfth

Circuit Court’s judgment granting the respondent’s Motion to Dismiss should be reversed. A dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim is reviewed de novo on appeal. Connecticut v. American Electric Power Co., Inc., 582

F.3d 309, 320 (2d Cir. 2009) (“AEP”). The Court must accept all allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Id.

I. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DISMISSAL BECAUSE THE POLITICAL QUESTION DOCTRINE DOES NOT BAR LINCOLN’S PUBLIC NUISANCE CLAIM

The State of Lincoln urges This Court to find that the political question doctrine does not bar justiciability of its public nuisance claim, and consequently allow its case to be heard. The political question doctrine originated in 1803, when

Chief Justice Marshall stated that: “[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Marbury v. Madison, 5 U.S. 137, 170 (1803). The political question doctrine provides that the judiciary will not adjudicate certain controversies that are better fit for the political branches. Baker v. Carr, 369 U.S. 186, 211 (1962). Furthermore, the non-justiciability of a political question is primarily a function of the separation of powers. Id. at 210. However, the doctrine is an exception to the obligation that if a federal court has jurisdiction, it must hear a case. Comer v. Murphy Oil USA, 585

F.3d 855, 872 (5th Cir. 2009). The doctrine may only be used when there is a true violation of the separation of powers and does not apply if a case is simply politically charged. Id. at 873.

In Baker, This Court laid out six textual and prudential factors, that if present in a case, would allow for dismissal on the grounds of a political question:

“(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) or a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) or an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 369 U.S. at 217.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence. Id.

The six factors articulated in Baker have been met with confusion and inconsistency; despite efforts by the court to be clear and consistent. Zachory Baron

Shemtob, The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual--Prudential Paradigm, 104 Geo. L.J. 1001, 1002 (2016). This Court’s decision in Baker vested a hybrid view of the doctrine, that awarded textual and prudential considerations with equal weight, not obviously granting any one factor paramount importance. Id. at 1008. The first two textual factors involve the

Constitution's text and structure. Id. at 1017. The final four considerations are prudential, or practical, concerns that courts might face by entering the political thicket. Id. at 1007. Later in Vieth v. Jubelirer, a plurality of This Court clarified that 8

the factors “are probably listed in descending order of both importance and clarity.”

Vieth v. Jubelirer, 541 U.S. 267, 277 (2004).

The textualist view of the political question doctrine only considers the first two

Baker factors, which have the greatest importance. Zivotofsky v. Clinton, 566 U.S.

189, 195 (2012); 541 U.S. 267, 277. The textualist view first arose in This Court in

1970. 104 Geo. L.J. at 1017. In Massachusetts v. Laird, Douglas became the first

Supreme Court Justice to adopt the purely textualist approach; since, Chief Justice

Roberts and Rehnquist have also followed. Massachusetts v. Laird, 400 U.S. 886, 896

(1970); 104 Geo. L.J. at 1021. In this case, Douglas’s only concern was whether the executive had constitutional permission to enter the Vietnam War without congressional approval. 104 Geo. L. J. at 1018. Offending another branch of government was irrelevant to Douglas; he emphasized that the duty of This Court is to interpret the Constitution. Id. Consequently, all that mattered was whether under the Constitution presidential wars were permissible. Id. Judges need not ask whether they have the expertise to settle a particular issue, but simply whether they are prevented from doing so by constitutional or historical restraints. Id. at 1026. Since

Douglas, Chief Justice Roberts and Rehnquist have further advocated the textualist reasoning, disregarding the other branches and only concerning their judicial action with the Constitution. Id. at 1017. Because This Court’s duty is to interpret the

Constitution, This Court should follow in adopting the textualist view, and permit the justiciability of Lincoln’s case. Id. at 1018.

A. This Court’s Most Recent Interpretation Of The Political Question Doctrine Declares That Only Textual Constraints Should Be Considered.

In This Court’s three most recent cases involving the political question doctrine, the textualist or historical views (which aim to abolish the doctrine altogether) have triumphed, and the prudential concerns have only been mentioned in concurrence or dissent. Id. at 1017-26. In the most current political question case,

Zivotofsky v. Clinton, This Court framed the doctrine as only concerned with the first two textual constraints on the court's authority; a case should only be dismissed if there is a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving the claim. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012).

The first Baker factor does not apply in Lincoln’s case because there is no

“textually demonstrable constitutional commitment of the issue to a . . . political department.” R. at 17. Further, neither party argues that the final three Baker factors are relevant to Lincoln’s case. R. at 21. As articulated by This Court in Zivotofsky, the only applicable concern is Baker factor (2): whether judicially discoverable and manageable standards for resolving the claim exist. 104 Geo. L.J. at 1002.

One of the limitations of the judicial power created by Article III, Section 1 of the Constitution is that judicial action must be governed by standard or rule. See U.S.

Const. Art. III, § 1, cl. 1; Vieth, 541 U.S. at 278. Furthermore, law pronounced by the courts must be principled, rational, and based upon reasoned distinctions. 541 U.S. at

278. Lastly, in order for a manageable standard to exist a court must develop, or have the basis for which they can develop, a rule or principle upon which to base its decision. Jill Jaffe, The Political Question Doctrine: An Update in Response to Recent

Case Law, 38 Ecology L.Q. 1033, 1049 (2011). The history of public nuisance law

provides these standards.

B. Well-Established Judicial Standards From Over A Century Of Public Nuisance Law Provide This Court With Direction For This Case.

This Court has successfully adjudicated complex common law public nuisance cases for over a century, providing the necessary standards to hear Lincoln’s case.

AEP, 582 F.3d at 326. For example, in Missouri v. Illinois, ("Missouri I"), Missouri filed a public nuisance lawsuit against Illinois involving the water pollution of the

Mississippi River. Missouri v. Illinois, 180 U.S. 208, 211-12 (1901). Missouri sought to prevent Illinois from discharging sewage into a channel that emptied into the

Mississippi River forty-three miles above St. Louis, which would make the water unfit for human, agricultural, and manufacturing purposes. Id. Not only was Missouri’s case allowed to be heard, but This Court also held that Missouri could maintain a public nuisance lawsuit for equitable relief before it even sustained injury. Id. at 246-

47; Cf. R. at 4 (In the present case, Lincoln has already sustained injury from the opioid crisis which has amounted to billions of dollars annually). Five years later,

Missouri brought suit against Illinois again (“Missouri II”). Missouri v. Illinois, 200

U.S. 496, 517 (1906). This Court carefully appraised the sophisticated scientific and expert evidence offered (such as whether the typhoid bacillus could survive the waterborne journey) and weighed the equities of the situation. Id. at 522-26. Although

This Court concluded that Missouri had not made its case with respect to injury and causation, Missouri was still given its day in court. Id. at 526. Missouri I and II demonstrate that This Court has been, and continues to be, capable of trying complex public nuisance cases. 11

Another example of This Court successfully adjudicating complex public nuisance claims comes from Georgia’s air pollution lawsuits. Between 1907 and 1916,

Georgia appeared before This Court on four different occasions seeking relief from noxious emissions of copper plants that were destroying forests, orchards, and crops; an injury This Court described as “analogous to torts.” Georgia v. Tenn. Copper Co.,

206 U.S. 230, 237-9 (1907). This Court evaluated the evidence, considered the magnitude of the injury, causation, and equitable factors, and granted injunctive relief to Georgia. Id. at 238-39. This Court recognized that the sulphurous fumes threatened considerable damage to forest, vegetable and human life. Id. In Georgia’s second suit, This Court successfully determined how much reduction of sulfur dioxide emissions was needed and provided specific emission limitations to no more than 20 tons per day from April to October of each year and to no more than 40 tons per day during the rest of the year. Georgia v. Tenn. Copper Co., 237 U.S. 474, 474-78 (1915).

In a subsequent suit, This Court again set definitive emissions limits, imposed monitoring requirements, and apportioned costs between the defendants. Georgia v.

Tenn. Copper Co., 240 U.S. 650, 650-51 (1916). As plainly done in the Georgia suits,

This Court is able to distinguish an ordinary tort suit, adjudicate on the merits, and provide relief.

C. Because Tort Law Principles Provide The Necessary Judicial Guidance, Lincoln’s Case Must Be Tried.

This Court may also turn to tort law for judicially manageable and discoverable standards. In AEP, eight states, the City of New York, and three land trusts separately sued the same electric power corporations that own and operate fossil-fuel power plants, seeking abatement of the corporations’ ongoing contributions to the 12

public nuisance of global warming. Connecticut v. American Electric Power Co., Inc.,

582 F.3d 309, 314 (2d Cir. 2009) (“AEP”). Plaintiffs brought these actions under the federal common law of nuisance to force the corporations to cap and then reduce their carbon dioxide emissions. Id. The case was originally dismissed at the district court level for involving a political question; however, that was overturned at the appellate level. 38 Ecology L.Q. at 1036. The Second Circuit found that there was no textual commitment of the issue to a political branch, and although climate change complexities are undoubtedly challenging, reasonableness standards are derived from many different tort claims. Id. at 1048-50. While liability for emissions of greenhouse gases may be a new concept, the duty to refrain from creating a public nuisance has existed for many years. Id. at 1050. The claims raised in AEP are complex, but they also involve discrete parties and injuries of a type long recognized by common law. Id. at 1051. In the end, the Second Circuit held that common law nuisance claims were judicially manageable, thus the court was able to resolve the case. Id. at 1050-51.

As the Second Circuit in AEP recognized, tort law provides a standard under which courts may decide common law nuisance cases. Id. at 1050. The Restatement articulates this standard: public nuisance law involves an “unreasonable interference with a right common to the general public." Restatement (Second) of Torts § 821B

(1979). The fact that an issue that arises before a court is politically-charged does not convert what is essentially a tort suit into a non-justiciable political question.

Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione, etc., 937 F.2d 44, 49.

Because the doctrine is one of political questions, not of political cases, seemingly political issues must still be resolved as tort cases. Baker, 369 U.S. at 217.

It is possible to separate a political question from a political case, as the Second

Circuit did in Klinghoffer. 937 F.2d at 49. In this case, passenger Leon Klinghoffer was tragically killed during a hijack on an Italian cruise. Id. at 47. The estate of

Klinghoffer brought suit against the owner of the charterer of the vessel, two travel agencies, and other various defendants. Id. Even though this case involved the

Palestenian Liberation Organization, which sparked the doctrine debate, The Second

Circuit determined that this was an ordinary tort suit and consequently, the defendants breached a duty of care owed to the plaintiff. Id. at 49. This case was not dismissed on the grounds of a political question and was rightfully resolved. Id. at 50.

The complexities raised in Klinghoffer are comparable to Lincoln’s public nuisance claim; although the opioid crisis has political implications, Lincoln’s case is an ordinary tort suit. The principles of tort law provide the necessary guidance in this case.

D. This Court Must Hear Lincoln’s Public Nuisance Claim Because The Claim Does Not Involve Policy Determinations And Current Legislature Fails To Provide An Adequate Remedy.

Even if This Court decides to consider Baker factor (3), it should still find

Lincoln’s case justiciable because Lincoln’s claim can be resolved without making policy determinations. Respondents argues that the third Baker factor supports dismissal because addressing the opioid crisis involves policy judgments unfit for the judiciary. This argument is invalid because a public nuisance claim can be resolved without making policy determinations.

A complex public nuisance claim that involves political areas may be tried without violating the separation of powers. In AEP, the district court wrongfully

claimed that an initial policy determination by the elected branches was required before it could adjudicate a global warming nuisance case, and consequently dismissed the case based on the third Baker factor. 582 F.3d at 319. Simply because an issue, such as global warming, may have political implications does not make it non-justiciable. See Baker, 369 U.S. at 211-17. The appellate court reversed the district court’s dismissal, finding that this case could be tried without making policy determinations. 582 F.3d at 330. Nowhere in their complaints did the states ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that rightfully falls within the roles of the legislative and executive branches. Id. at 325. Instead, the states sought to limit emissions from six domestic electricity plants on the ground that such emissions constitute a public nuisance that had caused them injury. Id. A single federal court’s decision on a common law nuisance claim, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national emissions policy, and does not implicate Baker factor (3). Id.

The State of Lincoln does not have to wait for Congress to enact a comprehensive approach to the opioid crisis before it can bring an action to obtain its well-deserved remedy. If regulatory gaps exist, common law fills those interstices. Id. at 330. In Illinois v. Milwaukee (“Milwaukee I”), Congress had already enacted numerous laws that involved interstate waters; however, the remedy sought by

Illinois was not within the precise scope of the remedies prescribed by Congress.

Illinois v. Milwaukee, 406 U.S. 91, 101-03; cf. R. at 22 (Congress does not currently provide a remedy for Lincoln’s injuries). This Court noted that the application of

federal common law to abate a public nuisance in interstate waters was not inconsistent with the Water Pollution Control Act. Id. at 104. This Court acknowledged that new federal laws and regulations may in time preempt the field of federal common law of nuisance; but until that time comes, federal courts are empowered to appraise the equities of public nuisance claims by water pollution. Id. at 107. Milwaukee I stands for the proposition that if existing statutes do not cover a plaintiff's claim and provide a remedy, a plaintiff is free to bring her claim under the federal common law of nuisance. Id. at 103. Although Milwaukee I addressed water pollution, the same reasoning can be applied to Lincoln’s case. Lincoln is free to seek its remedy under the federal common law and does not need to wait for an initial policy determination to proceed. Further, Lincoln’s public nuisance claim is not inconsistent with any Congressional legislature. Where a case "appears to be an ordinary tort suit, there is no 'impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.'" McMahon v. Presidential

Airways, Inc., 502 F.3d 1331, 1365 (11th Cir. 2007) (quoting Baker, 369 U.S. at 217).

For these reasons, This Court must hear Lincoln’s case.

E. The Vanishing Concept Of The Political Question Doctrine Is Irrelevant In Lincoln’s Case And Should Not Influence This Court’s Decision.

This Court has never dismissed a public nuisance claim based on the political question doctrine. 104 Geo. L.J. at 1040. Since Baker was decided in 1962, thirty-eight cases have been decided where the doctrine was considered either by the majority, concurrence, or dissent as having some importance or relevance to the case's outcome.

Id. at 1002. Not one of these thirty-eight cases involved a public nuisance claim. See

Zivotofsky v. Clinton, 566 U.S. 189 (2012) (foreign policy); Vieth v. Jubelirer, 541 U.S.

267 (2004) (political gerrymandering); Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668

(1996) (first amendment protection); Nixon v. United States, 506 U.S. 224 (1993)

(Senate impeachment proceedings); U.S. Dep't of Commerce v. Montana, 503 U.S. 442

(1992) (apportionment); Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) (political patronage practices based on party affiliation); United States v. Munoz-Flores, 495

U.S. 385 (1990) (Origination Clause); Quinn v. Millsap, 491 U.S. 95 (1989) (Equal

Protection Clause); Davis v. Bandemer, 478 U.S. 109 (1986) (political gerrymandering); Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) (Guaranty

Clause of Article IV, § 4). Further, only two of these decisions resulted in dismissal because of the doctrine, and both of those decisions were based at least in part on

Baker factor (1) a textual commitment of the issues to a political branch. 38 Ecology

L.Q. at 1039-40. The two dismissed cases had no association with a public nuisance; they involved the training and weaponry of the military under the Powers of Congress

Clause and the procedure for impeachment under the Impeachment Trial Clause. Id. at 1033-40. It would be unprecedented for This Court to dismiss a public nuisance claim based on the political question doctrine.

The political question doctrine's disappearance also supports the justiciability of this case. This Court has found a decreasing number of cases to be non-justiciable because of a political question. Id. at 1025. The political question doctrine was invoked ten times in Supreme Court cases in the 1960s; fourteen times in the 1970s; eight times in the 1980s; five times in the 1990s; but only once in the 2000s and a single time so far this decade. Id. at 1026. This Court in Baker set a high bar for non-

justiciability; therefore, dismissal on the grounds of a political question is exceedingly rare. Baker, 369 U.S. at 217.

In conclusion, Lincoln’s public nuisance claim should not be dismissed on the grounds of the political question doctrine. There is no textually demonstrable commitment of a public nuisance claim based on the opioid epidemic to any political branch, well-established standards from public nuisance and tort law provide guidance to try this case, and the case can be heard without making national policy determinations. Federal common law provides a remedy for Lincoln, and it would be unjust to deny Lincoln the opportunity to obtain that relief. Further, the doctrine has never dismissed a public nuisance claim in This Court and the doctrine altogether is dying. Consequently, the District Court erred in dismissing Lincoln’s public nuisance claim on the basis of the political question doctrine.

II. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DISMISSAL BECAUSE THE STATE OF LINCOLN’S COMPLAINT SATISFIES THE PLAUSIBILITY STANDARD FOR PUBLIC NUISANCE

The State of Lincoln stated a claim of relief under Federal Rule of Civil

Procedure 8(a)(2). Under the Federal Rule 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The pleading standard does not require detailed factual allegations. Id. To survive a motion to dismiss, the complaint must merely contain “sufficient factual matter, accepted as true . . . that is plausible on its face.’” Id. Therefore, a claim has facial plausibility when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 18

Lincoln defines public nuisance as “[a]ny conduct or activity that is injurious to health; indecent; offensive to the senses; or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property.” Linc.

Stat. 54-133 (2018). Further, Lincoln Supreme Court adopts the common law public nuisance principles set out in the Restatement (Second) of Torts. Seward City v.

Blaine, 233 Linc. 3d 1008 (1998). The Restatement defines public nuisance as “an unreasonable interference with a right common to the general public.” Restatement

(Second) of Torts § 821B(1) (1979). Moreover, the Restatement provides three nonexclusive circumstances that meet the definition of unreasonable interference with a public right:

“(1) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (2) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (3) whether the conduct is of a continuing nature or has produced a permanent or long- lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.”

Id. § 821B(2). Public nuisance traditionally applies to the use and enjoyment of land, however, unlike private nuisance, public nuisance does not necessarily require the interference with use and enjoyment of land. Id. cmt. (h).

A. The State Of Lincoln Successfully Alleged All Elements Under The Restatement.

The Restatement has been interpreted to separate out a claim for public nuisance into several elements for liability: (1) injury to a public right; (2) unreasonable conduct; (3) control of the instrumentality causing the nuisance; and (4) proximate cause. Hamons, Nathan R., Addicted To Hope: Abating The Opioid 19

Epidemic and Seeking Redress From Opioid Distributors For Creating A Public

Nuisance, 121 W.Va.L.Rev. 257, 267. Respondents do not raise issue to proximate cause, and therefore proximate cause will not be discussed. R. at 10, fn. 8. However, though these elements are derived from common law, states have differed on how they define public nuisance. Id. at 267. For example, Ohio interprets the broad language of the Restatement as maintaining a public nuisance cause of action for 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. Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1142 (Ohio 2002).

The Restatement expanded public nuisance law by granting standing to a representative who may sue on behalf of the general public. R.2d § 821B, at 637. This opened litigation against manufacturers for products that created a public nuisance that interfered with or threatened the community or public health. Hamons, at 271.

Furthermore, courts have applied public nuisance theories to public health and safety issues such as claims against gun manufacturers for public injuries. People v.

CanAgra Grocery Products Co., 227 Cal.Rptr.3d 499, 529 (App. 6thD. Cal. 2017); City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1232 (Ind. 2003);

Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d1136, 1144 (Ohio 2002). In recent decisions, courts have granted plaintiff’s claims against defendants in the representative capacity for public nuisance causes of action. State of Oklahoma v.

Purdue Pharma L.P., et. al., No. CJ-2017-816 (Okla.Dt.Ct. Cleveland Co. Aug.

26,.2019); State ex rel. Morrisey v. AmerisourceBergen Drug Corp., 2014 WL 12814021

* 10 (W.Va.Cir.Ct.). In order to succeed, a public right must be asserted as the sin qua

non to a public nuisance claim and “must affect an interest common to the general public…or it must be dangerous or injurious to the general public, or it must be harmful to the public health.” Am. Jur.2d Nuisances § 39 (2002). i. Public Right

Lincoln successfully asserted the Respondent’s conduct interfered with a public right. Comment g of the Restatement expands the definition of interference with a public right. R.2d § 821B, cmt. (g). “A public right is one common to all members of the general public.” Id. A public right is distinguishable from an individual right where “everyone has to be assaulted or defamed or defrauded or negligently injured.”

Id. “It is not, however, necessary that the entire community be affected by a public nuisance, so long as the nuisance will interfere with those who come in contact with it in the exercise of a public right or it otherwise affects the interest of the community at large.” Id.

Several courts have found the plaintiff asserted a public right in a public nuisance case when the right affects the interest of the public at large. State of

Oklahoma, No. CJ-2017-816 at ¶ 22; CanAgra Grocery Products Co., 227 Cal.Rptr.3d at 552; State ex rel. Morrisey, 2014 WL 12814021 at *10; City of Boston v. Smith &

Wesson Corp., 2000 WL 1473568 at *14 (Mass. Super. July 13, 2000). For example, in the most recent suit against Johnson & Johnson, the State of Oklahoma alleged a public nuisance due to the defendant’s marketing campaigns. State of Oklahoma,

No.CJ-2017-816 at ¶ 19. These practices established messages that pain was being undertreated, prescribing opioids was low risk of abuse and low danger, and overstating efficacy of opioids as a class of drug. Id. Further, the defendant’s

marketing and promotional efforts were designed to reach Oklahoma doctors through

Defendant’s sales reps, unbranded and branded marketing materials, and

Defendant’s paid speakers. Id. at ¶ 20. Moreover, Defendants used the phrase

“pseudoaddiction” to convince doctors that patients who exhibited signs of addiction were not actually suffering from addiction but rather undertreatment of pain. Id. at ¶

22. The court held that the public nuisance affected, at the same time, an entire community or neighborhood, and, although the extent of the annoyance or damage inflicted upon the individuals may be unequal, the conduct by opioid pharmaceuticals, such as false and misleading marketing, qualifies as an act or omission capable of sustaining liability under Oklahoma’s public nuisance law. Id. Additionally, in

ConAgra Grocery Products Co., the trial court found the defendants had actual knowledge of the dangers of lead paint but argued that the harm was only private harms in private residences, and the suit was merely an aggregation of private harms. CanAgra Grocery Products Co., 227 Cal.Rptr.3d at 552. However, the court held California asserted a public right because the interior lead paint does not only pose a risk in a private home but the community has a collective social interest in the safety of children in residential housing. Id. The court found the interference seriously threatened to cause grave harm to the physical health of the community’s children. Id.

Moreover, in West Virginia, the Circuit Court found that a public right was successfully asserted taking all facts and inferences as true at the pleading stage.

Plaintiffs asserted that the defendants distributed large quantities of controlled substances to clients who serve a customer base who abuse prescribed medications.

State ex rel. Morrisey, 2014 WL 12814021 at *3. The court held that the defendants interfered with the public right of West Virginia residents “to be free from unwarranted injuries, addictions, diseases and sickness.” Specifically, this right included freedom from the risk of addiction to prescription drugs and/or other adverse consequences from the use of addictive prescription drugs distributed by the

Defendants endangering the public health and safety of the citizens in West Virginia.

Id. at *10. Finally, in City of Boston, the City sued Smith & Wesson for the harm in expenditure of public resources, harm to victims from climbing murder rates, and added investigatory and prosecutorial procedures due to violating the law by deceptive advertising and unlawful distribution of handguns. City of Boston, 2000 WL

1473568 at *14. The complaint alleged that the defendants interfered with the public safety, health, and peace by increasing spending on law enforcement, emergency rescue services, increased security at public schools and public buildings, cost for coroner and funeral services for unknown victims, pensions, disability, and unemployment benefits, higher prison costs, youth intervention programs, lower tax revenues, and lower property values. Id. at 14. The court held the state successfully stated a claim of relief for a public nuisance that interferes with a public right. Id.

In the present case, Lincoln asserted a public right similar to the aforementioned cases. Lincoln stated its citizens have a common right to public health, welfare, and safety, and the Respondent’s sales and marketing practices unreasonably interferes with those rights by creating an apprehension of danger to person and property from the adverse effect addiction has on the community. R. at 2.

The public right asserted by Lincoln is a community right, greater than an individual

right, as the court held in City of Boston. R. at 4. City of Boston, 2000 WL1473568 at

*3. This right affects more than just individuals, due to the incurred cost on Lincoln.

Id. The state as a whole suffers substantial costs used to treat the effects of addiction and overdoses, along with increased costs on law enforcement because of increased criminal activity. Id. Similar to the public right asserted in Morrisey, the public right to be free from addictions and diseases is applicable to the community at large. State ex rel. Morrisey, *3. In accordance with the most analogous, State of Oklahoma, this

Court should acknowledge that though the annoyance and injuries may be unequal to specific individuals, Lincoln stated a public right affecting the community at large.

State of Oklahoma, No.CJ-2017-816 at ¶ 22. The advertising and marketing methods, false assertions regarding treatment for chronic pain, and targeting primary care doctors and those who are more susceptible to chronic pain assertions made affect the community at large. Id.

On the contrary, the states that have not found the plaintiff successfully asserted a public right, were either suits against manufacturers where the plaintiff construed the public right too broadly or the courts did not accept the public nuisance theory for claims that did not involve property-based public nuisance claims. State ex rel. Jennings v. Purdeu Pharma L.P., 2019 WL 446382 * 13 (Del.Super. Feb. 4, 2019)

(holding that the state “failed to allege a public right with which defendants have interfered” because Delaware public nuisance claims have been limited to situations involving land use); City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1114

(Ill. 2004) (found that although the defendants did not argue the plaintiffs failed to state a public right, and no case has been dismissed for failure to properly plead the

existence of a public right, the court broadly characterized the public right to be an individual right to be free from the threat of illegal conduct by others); State v. Lead

Industries, Ass’n, Inc., 951 A.2d 428, 448 (R.I. 2008) (holding that the public right to be free of lead paint in residential homes is an individual right of an individual child not to be poisoned by lead paint, similar to the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured, rather than a public right which does not fall under the guises of a public nuisance claim).

Unlike the individual right to be free from the threat of illegal conduct by others, assaulted, or defrauded, the State alleges a right common to the community at large that affects the health and safety of Lincoln’s citizens. R. at 4. Rather, Lincoln alleges that the threat is not an illegal conduct by others threatening the safety of individuals but drug manufacturers and distributors threatening the public health, public safety, public peace, and infringing on Lincoln’s economic stability due to a crisis amounting to “billions of dollars annually.” R. at 4. Additionally, the

Restatement has provided guidance that public nuisance claims reach outside the confines of property-based nuisance claims. SEC 821B comment g; City of Chicago,

821 N.E.2d at 1114; Lead Industries, Ass’n. Inc., 951 A.2d at 448. Therefore, Lincoln stated a public right sufficient for a claim of relief. ii. Unreasonable Interference

According to the language of the Restatement, the interference of the public right must be unreasonable. R.2d § 821B(1). The test for an unreasonable interference, found in case law, defines “unreasonable” by looking to the publics resulting injury. City of Gary ex rel. King, 801 N.E.2d at 1231. Comment (e) to the

Restatement further states the defendant is held liable when his interference was intentional or unintentional and otherwise actionable under principles controlling liability for negligent or reckless conduct. R.2d § 821B, cmt. (e). If the interference is intentional, it must also be unreasonable. Id. Whether it is unreasonable “turns on whether the activity, even lawful, can be expected to impose such costs or inconvenience on others that those costs should be borne by the generator of the activity, or the activity must be stopped or modified.” City of Gary ex rel. King, 801

N.E.2d at 1231. Unreasonableness of an interference falls on the activity in question and the magnitude of the interference created. Lead Industries Ass’n, Inc., 951 A.2d at

447. For example, “activities carried out in violation of state laws or local ordinances generally have been considered unreasonable if they interfere with a public right; however, activates that do not violate the law but nonetheless create a substantial and continuing interference with a public right also generally have been considered unreasonable.” Id.

Courts have found an interference of a public right to be unreasonable when conduct is of a continuing nature or has produced a permanent, long lasting effect, and the actor knows or has reason to know, the interference has a significant effect upon the public right. ConAgra Grocery Products Co., 227 Cal.Rptr.3d at 530; City of

Gary ex rel. King, 801 N.E.2d at 1235. For example, in ConAgra Grocery Products Co. the trial court found that the defendants had actual knowledge of the hazards of lead paint including lead poisoning to children when they produced, marketed, sold, and promoted lead paint for residential use. People v. ConAgra Grocery Products Co., 227

Cal.Rptr.3d at 529. In a review of sufficiency of the evidence on appeal, the court

affirmed the trial court’s decision that the defendants had actual knowledge of the hazards in lead paint and promoted the use of lead paint in residential homes meeting the element of unreasonable interference of a public nuisance. Id. at 529-47.

Additionally, in City of Gary ex rel. King, the plaintiffs asserted that dealers engaged in illegal sales, distributors and manufacturers knew of the practices and had it within their power to stop them but did not because of profit reasons, and manufacturers were on notice of concentration of illegal handgun sales creating a substantial and ongoing harm from these unlawful sales. City of Gary ex rel. King,

801 N.E.2d at 1235. The court held that the allegations stated a claim under public nuisance. Id. Therefore, because the defendants knew of the conduct and the long- lasting effect of firearm sales, the interference was unreasonable.

In contrast, courts that have not found the interference to be unreasonable have denied claims for public nuisance. City of Chicago, 821 N.E.2d at 1126 (stating that for an interference to be unreasonable in the context of a highly regulated industry, a public nuisance claim may stand if the defendant was negligent in his operation of the enterprise; however, the court held plaintiffs failed to state a cause of action for public nuisance because defendants owed no duty to Chicago residents to prevent firearms from ending up in the hands of persons possessing and using them illegally).

Similar to ConArga Grocery Products Co. and City of Gary ex rel. King, Lincoln alleged the defendants and their agent “knowingly made a number of false assertions about the safety of their opioid drugs and intentionally downplayed the risks of addiction, in order to obtain more sales of their drugs to overcome the reluctance to

prescribe opioids, because of the medical profession’s concerns about their effectiveness and the risk of addiction. R. at 2-3; ConArgra, 227 Cal.Rptr.3d at 529;

City of Gary ex rel King., 801 N.E.2d at 1235. Further, Lincoln alleges the defendants identified and targeted certain providers more likely to treat patients with chronic pain. R. at 4. Moreover, the continuing effect of “long-term administration of opioids has caused many patients to become addicted to painkillers” and Lincoln incurring substantial costs resulting in an economic and social opioid crisis. R. at 4. This case is distinguishable from City of Chicago because even though prescriptions of controlled substances are regulated by the FDA and DEA, the conduct of the Respondents is still unreasonable. Therefore, because the Respondent’s intentionally and knowingly made false assertions, downplayed risks of addiction, and targeted certain providers,

Lincoln stated an unreasonable interference with a long-lasting effect on the health and public safety of Lincoln residents.

iii. Control

Various approaches to public nuisance result in an inconsistent application of the “control” element under the Restatement. The Restatement itself does not mention control as a necessary element for a public nuisance claim. R.2d. § 821B. Yet, states have the ability to form their own common laws and have implemented the element as a means of recovery in order to prevent plaintiff’s claims from succeeding.

In re Lead Paint Litigation, 924A.2d 484, 499 (N.J. 2007). However, a state that follows and remains faithful to the Restatement would not implement control as a required element. Thomas ex rel. Gramling v. Mallett, 701 N.W.2d 523, 558 (Win.

2005) (holding defendants can be found liable at a minimum for contributing to creating a risk of injury to the public). Control has never been an element under the

Restatement. R.2d § 821B. Tipps, Peter, Controlling The Lead Paint Debate: Why

Control Is Not An Element Of Public Nuisance. 50 B.C.L.Rev. 605, 607 (2009). When interpreting whether the Restatement authors intended to include an element of control for a claim of public nuisance, one must look to the language throughout the

Restatement as guidance. Id. at 627. Comment b to Restatement (Second) of Torts §

834 defines an activity to “include all acts that are a cause of harm.” Restatement

(Second) § 834 cmt. (b). Further, the Restatement gives guidance when several persons participate in carrying on an activity stating that their participation must be substantial to be held liable, but not that the person must be in control of the activity at the time the activity occurs. Id. cmt. (d). To say the contrary would be unfaithful to the Restatement’s language. Tipps, 50 B.C.L.Rev. at 627.

Even if control is not asserted in a claim for relief, courts have stipulated that control is a nonessential factor to succeed on a public nuisance claim. ConAra Grocery

Products Co., 227 Cal. Rptr.3d at ; City of Chicago, 821 N.E.2dd at 1132; Cincinnati,

768 N.E.2d at 1143; City of Boston, 2000 WL 1473568 * 14. For example, in ConAgra

Grocery Products Co. the court states California precedent holding a defendant’s control of the nuisance is not necessary to establish liability in a representative public nuisance action. ConAgra Grocery Products Co., 227 Cal. Rptr.3d at

594. Additionally, in City of Boston, the court states that liability extends to all who join or participate in the creation or maintenance of a public nuisance. City of Boston, at 14. Further, the court states in Cincinnati, that it is not fatal to appellant’s public

nuisance claim that the appellee did not control the actual firearms at the moment that harm occurred. Cincinnati, 768 N.E.2d at 1143. The court narrowly defined the nuisance to be the creation and supply of the illegal, secondary market, not the actual use of firearms that caused the injury. Id. Therefore, the court focuses on the conduct of the manufacturers in their control of the supply and creation rather than the use of the gun itself, therefore rendering control of the gun inapplicable to the public nuisance claim. Id. Moreover, in City of Chicago, the court stipulated that lack of control is not an absolute bar for a public nuisance cause of action. City of Chicago,

821 N.E.2d at 1132. Rather, the court states control is a relevant factor in proximate cause and when the court fashions appropriate injunctive relief. Id. Ultimately the court holds that the dealer defendants had ownership and control at some point in the distribution chain, and if public nuisance results from illegal use of the firearms, liability is not precluded merely because the defendants no longer control the objects.

Id.

On the other hand, some courts have found that the control element was required to a public nuisance claim. State ex rel. Jennings, 2019 WL 446382 * 13

(holding the plaintiff failed to allege control by the defendants over instrumentality of the nuisance at the time of the nuisance); City of Philadelphia v. Beretta U.S.A. Corp.,

277 F.3d 415, 422 (3d.Cir. 2002) (holding the defendants, under Pennsylvania law, were no longer in control of the instrument of the nuisance and lacked direct control over how end-purchasers used or misused weapons); Camden County Board of Chosen

Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 541 (3d.Cir. 2001) (holding the causal chain was too attenuated to attribute sufficient control under New Jersey law);

Lead Industries, Ass’n, Inc., 951 A.2d at 455 (holding that the plaintiffs failed to assert a set of facts that the defendants had manufactured and had control over the product causing the alleged nuisance at the time the children were injured).

Though control is a nonessential factor, Lincoln successfully asserted the

Respondents maintained control over the nuisance. Lincoln looks to the affirmative conduct by the Respondents and their promotions as the cause of the nuisance. R. at

2-4; ConAgra Grocery Products Co., 227 Cal.Rptr.3d at 546. The complaint specifically alleges Respondents have control over assurances made to “members of the medical profession that opioids were safe and effective,” control over assurances made to

“doctors that the risk of addiction is low when opioids were prescribed for the treatment of chronic pain,” and control over assurances claiming that opioids could be safely prescribed for patients who were predisposed to addiction.” R. at 3. Unlike Lead

Industries, Lincoln states a set of facts, that if taken as true, assert that the

Respondents manufactured and had control over the product causing the alleged nuisance. Lead Industries, Ass’n, Inc., 951 A.2d 428 at 455. In opposition to the present case, the cases that found a defendant lacked control over the instrumentality, which caused the nuisance, focused on the injuries created by the criminal or third party using the weapon, rather than looking to the behavior of the manufactures in false promotions and advertising. Therefore, unlike the gun manufacturing cases with intervening third parties causing injuries through illegal misuse of the product, the source of the crisis in this case starts and ends with deceptive tactics taken by the various drug manufacturers. R. at 3. The practices of the manufacturers caused primary care doctors to overprescribe which creates and

maintains addiction and disease for the residents of Lincoln. R. at 3. City of

Philadelphia, 277 F.3d at 422; Camden County Board of Chosen Freeholders, 273 F.3d at 541. In this situation the Respondents have direct control over the product and its use.

CONCLUSION

In light of the foregoing reasons, This Court should reverse the Twelfth Circuit

Court’s grant of the Motion to Dismiss because the State of Lincoln stated a justiciable question and successfully stated a claim for public nuisance.

Respectfully submitted,

Team 2803 Team 2803 Counsel for the Petitioner Date: September 19, 2019