Maryland Supreme Court ruling puts Baltimore’s opioid win at risk

Maryland’s highest court rejected a key legal theory in an Anne Arundel County opioid lawsuit Monday, a decision that is likely to have consequences for the $266 million jury verdict Baltimore won against drug companies in 2024.

The new decision from the Supreme Court of Maryland could threaten the city’s winnings and challenge the wisdom of Baltimore’s go-it-alone strategy in opioid litigation.

In its decision, the Supreme Court declined to extend the concept of a “public nuisance” to include the legal dispensing of controlled substances, like opioids.

Public nuisance law was central to Baltimore’s claims against drug manufacturers, distributors and pharmacies, which the city accused of harming public health and safety by allowing massive quantities of opioids to be shipped to the region.

Many of those companies decided to settle with the city rather than go to trial, racking up $400 million for Baltimore before the case even reached a courtroom. That money is not impacted by the new Supreme Court decision.

But the city also won $266 million at a jury trial against the drug distributors McKesson and AmerisourceBergen, now known as Cencora. A Baltimore judge slashed that verdict in half, offering the city a total of $152 million.

The city accepted the deal but appealed the decision and asked Maryland’s Supreme Court to take up the case right away, bypassing an intermediate appellate court. McKesson and AmerisourceBergen also appealed.

Monday’s decision in the Anne Arundel County opioid case does not mean that appeal is finished, but it suggests that the justices are unlikely to agree with the city’s arguments.

A spokesperson for Mayor Brandon Scott said the city is proud of the millions of dollars it has already recovered in its opioid litigation.

“The city’s judgment against distributors McKesson and AmerisourceBergen following a successful jury trial remains on appeal, and the city will continue to defend the judgment,” said Tracy King, Scott’s communications director.

McKesson and AmerisourceBergen did not immediately respond to requests for comment Monday evening.

The state Supreme Court’s decision centers on the idea of a public nuisance, a 600-year-old legal concept typically applied to property, like the pollution of a lake. The idea is that the government can bring legal action against conduct that “interferes with a public right.”

In recent years, state and local governments have tried to apply the idea of public nuisance to the harm that they said drug companies caused by flooding the market with easily accessible painkillers.

About half a billion opioids inundated Baltimore City and Baltimore County between 2006 and 2019, at the same time that drug companies were aggressively marketing painkillers to doctors and underplaying the risks of addiction, court records have shown. The city argued that the ready supply of legal opioids created a pool of users who sought out more dangerous street drugs, like heroin and fentanyl, when painkillers became less available following a federal crackdown.

The city’s lawsuit claimed that the drug companies should pay part of the cost of remediating the deadly opioid crisis in the city. Baltimore has experienced the highest rate of overdose deaths of any major city in America, according to a series of articles from The Baltimore Banner and The New York Times.

Anne Arundel County’s case brought similar claims against pharmacy benefit managers and drug distributors. A federal judge put the case on hold before trial and asked Maryland’s Supreme Court for an opinion on the public nuisance question.

Monday’s ruling undercuts the idea that public nuisance law covers the dispensing of opioids. There are already extensive state and federal regulations that address opioid dispensing, the justices concluded, and the Maryland General Assembly is better suited to address social concerns related to opioid misuse than the courts.

“We do not intend to dismiss the universally recognized concerns related to the opioid epidemic,” the justices wrote in the majority opinion. “But we decline to recognize a public right to be free from the adverse effects associated with a lawful product being diverted, misused, or abused.”

While one justice dissented, she did not disagree with the bulk of the majority’s decision.

The question of how to apply public nuisance law remains muddled in the courts. State supreme courts in Oklahoma and Ohio have reached the same conclusion as the Maryland justices. But the 4th U.S. Circuit Court of Appeals ruled in favor of West Virginia communities that brought a public nuisance action against drug distributors in a decision issued late last year.

Bruce Poole, an attorney in Hagerstown who has helped handle opioid lawsuits for several Western Maryland communities, said the ruling is concerning for Baltimore’s case.

“Other courts across the land have allowed these claims to go forward so the corporate wrongdoers pay at least part of the bill for the harm they have caused,” he said. “Not in Maryland.”

Poole said the city’s legal strategy was sound, despite the new ruling. Baltimore won nearly as much in settlements as the entire state of Maryland will receive as part of a massive $26 billion settlement that ended the vast majority of claims across the country against several pharmaceutical giants.

“I think the city did the absolute right thing,” Poole said. “The jurors saw firsthand the damages and awarded appropriately.”