Background
Anne Arundel County, Maryland filed suit in federal court against a group of pharmacy benefit managers (PBMs) — including Express Scripts and OptumRx — and retail and mail-order pharmacies including CVS entities. The County alleged a single common-law public nuisance claim, contending that the defendants had partnered with opioid manufacturers in deceptive marketing, placed opioids on formularies with preferred status and minimal restrictions, and filled prescriptions in excessive and unsafe quantities, thereby flooding the county with opioids and causing widespread public harm. The County sought injunctive relief, abatement costs, compensatory damages for past and anticipated expenses on law enforcement and addiction services, and attorneys’ fees.
The United States District Court for the District of Maryland certified two questions to the Supreme Court of Maryland under the Maryland Uniform Certification of Questions of Law Act: (1) whether the licensed dispensing of, or administration of benefit plans for, a controlled substance can constitute an actionable public nuisance under Maryland common law; and (2) if so, what the elements of such a claim are and what relief a local government may seek. The Supreme Court accepted the questions and heard argument on September 9, 2025.
Maryland’s existing public nuisance jurisprudence had never extended the doctrine beyond its traditional roots as a mechanism for criminal prosecution or injunctive abatement of harmful conduct, and the Court had never recognized government-actor damages in a public nuisance action. The defendants pointed to decisions from the supreme courts of Oklahoma, Ohio, Maine, Rhode Island, New Jersey, and Illinois all rejecting efforts to expand public nuisance to opioid or other product-based claims, as well as the Third Restatement of Torts’ conclusion that public nuisance is an inapt vehicle for such claims.
The Court’s Holding
The Supreme Court of Maryland answered the first certified question “no” and declined to reach the second. The Court held that the licensed dispensing of, or administration of benefit plans for, a controlled substance does not constitute an actionable public nuisance under Maryland common law. The Court reasoned that Maryland’s public nuisance doctrine has never expanded beyond its traditional historical principles — treating a public nuisance action not as a tort but as a basis for criminal prosecution or injunctive abatement — and has never allowed a government actor to recover damages in a public nuisance action.
The dispositive ground for dismissal was the County’s failure to satisfy a primary requirement of any public nuisance claim: that the defendants’ conduct affect a common public right. The Court concluded that the PBMs’ formulary and benefit-management decisions and the pharmacies’ filling of opioid prescriptions, while alleged to have caused widespread harm, did not interfere with a right common to the general public in the manner required by Maryland law.
The Court further stated that even if the County could establish interference with a common public right, judicial restraint would counsel against expanding the doctrine here. Maryland and federal law together establish an extensive, overlapping statutory and regulatory framework — including the Maryland Pharmacy Act, the state PBM statute under the Insurance Article, and the federal Controlled Substances Act — that comprehensively governs the prescribing, dispensing, and benefit management of opioids. The Court emphasized that common law public nuisance is an inapt vehicle for addressing complex societal problems best left to the legislative branch.
Key Takeaways
- Maryland common law public nuisance does not extend to the licensed dispensing of controlled substances or the administration of prescription drug benefit plans — the doctrine remains tethered to its traditional role as a basis for abatement or criminal prosecution, not a damages tort for government actors.
- A plaintiff asserting public nuisance under Maryland law must show that the defendant’s conduct interferes with a right common to the general public; allegations of widespread societal harm from opioid distribution did not satisfy that element here.
- Where comprehensive federal and state regulatory frameworks already govern the challenged conduct, Maryland courts will exercise restraint rather than expand common law liability — preserving those policy determinations for the legislature.
- Maryland joins the growing majority of state high courts — including Oklahoma, Ohio, and Maine — that have rejected public nuisance as a vehicle for opioid-related claims against pharmacies and PBMs.
Why It Matters
This decision forecloses a significant avenue of litigation that counties and municipalities across Maryland might have pursued to recover opioid-crisis costs from the pharmacy sector. By declining to expand public nuisance beyond its historical confines, the Supreme Court of Maryland has made clear that local governments cannot use common law tort theory as a substitute for legislative or regulatory action when targeting licensed, heavily regulated industries — even where the social harm alleged is severe and well-documented.
The ruling has practical implications beyond opioids: it signals that Maryland courts will resist pressure to stretch public nuisance doctrine to address complex product-related harms, consistent with the Third Restatement and sister-state decisions. Practitioners advising local governments on cost-recovery strategies related to opioids — or other regulated industries — will need to look to statutory claims, direct regulatory channels, or legislative solutions rather than common law nuisance.