The Maryland Supreme Court stated in its Opinion in a related case filed on March 23, 2026:
Pursuant to a certification order from the United States District Court for the District of Maryland, the Supreme Court of Maryland (“Supreme Court”) was requested to answer the following questions:
- Under Maryland’s common law, can the licensed dispensing of, or administration of benefit plans for, a controlled substance constitute an actionable public nuisance?
- If so, what are the elements of such a public nuisance claim, and what types of potential relief can a local government plaintiff seek when asserting such a claim?
The Maryland Supreme Court held:
“In conclusion, we hold that 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. Maryland has not expanded the public nuisance doctrine beyond the traditional historical principles embodied in the common law—namely, that a public nuisance action was not regarded as a tort but was instead a public action by a government entity to pursue criminal prosecutions or seek injunctive relief to abate harmful conduct. This Court has never recognized a government entity’s ability to recover damages for public nuisance.”
“We further determine that we do not need to decide in this case whether to expand Maryland’s common law of public nuisance because the County failed sufficiently to allege that the Defendants’ conduct affects a common public right. We decline to recognize a public right to be free from the adverse effects associated with a lawful product being
diverted, misused, or abused. To recognize a general common law “public right” to be free from any potentially injurious harm associated with a lawfully licensed product being diverted, abused, or misused would permit nuisance liability to be imposed on an endless list of manufacturers, distributors, and retailers of manufactured products that are intended to be used lawfully, when such products are misused and cause injury.”
“Moreover, even if the County were able to establish that the alleged conduct interfered with a common public right, we would nonetheless decline to expand Maryland’s common law of public nuisance to govern the conduct alleged in the County’s complaint given the extensive federal and state statutory and regulatory framework that governs the
highly complex conduct of the licensed prescribing, dispensing, and administration of benefit plans related to opioids. Complex societal problems are best suited for the Legislature, and judicial restraint is the appropriate principle to apply here.”
Source Express Scripts, Inc., et al. v. Anne Arundel County, Maryland, Misc. No. 1, September Term, 2025.
Citing the above case, the Maryland Supreme Court entered an Order on April 24, 2026 vacating the $152 million verdict in favor of Baltimore in its opioid public nuisance case, stating:
In consideration of the record in this case, the petitions for writ of certiorari, and in light of the Court’s recent decision in Express Scripts, Inc., et al. v. Anne Arundel County, Maryland, _ Md. _, Misc. No. 1, Sept. Term, 2025 (March 23, 2026), it is this 24th day of April 2026, by the Supreme Court of Maryland,
ORDERED that the petitions for writ of certiorari are granted; and it is further
ORDERED that the judgment of the Circuit Court for Baltimore City is vacated and the case is remanded to that court for further proceedings consistent with this Court’s opinion in Express Scripts.
Source Mayor & City Council of Baltimore v. McKesson Corporation.
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