Eastern Maine Medical Center v. Walgreen Co.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 10
Docket: BCD-23-73
Argued: March 7, 2024
Decided: February 6, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

EASTERN MAINE MEDICAL CENTER et al.

v.

WALGREEN CO. et al.

HORTON, J.

[¶1] Eastern Maine Medical Center and eight other Maine hospitals1 (the

Hospitals) appeal from a judgment entered in the Business and Consumer

Docket (Duddy, J.) dismissing their 509-page complaint against businesses and

individuals (“the Opioid Sellers”) involved in marketing and distributing

prescription opioids.2 The essence of the Hospitals’ cause of action is that the

1 The other hospitals are Aroostook Medical Center, Blue Hill Memorial Hospital, Charles A. Dean

Memorial Hospital, Inland Hospital, Maine Coast Regional Health Facilities, Mercy Hospital, MRH
Corp., and Sebasticook Valley Health.

2 The complaint sorts the defendants into two primary categories: “marketing defendants” and
“distributor defendants.” The marketing defendants include pharmaceutical manufacturing and
sales companies, and the distributor defendants include national retail pharmacies and distributors.

The named marketing defendants are Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Watson
Laboratories, Inc.; Actavis LLC; Actavis Pharma, Inc.; Johnson & Johnson; Janssen Pharmaceuticals,
Inc.; Endo Pharmaceuticals, Inc.; Endo Health Solutions, Inc.; Par Pharmaceutical, Inc.; Par
Pharmaceuticals Companies, Inc.; Allergan Finance, LLC; Allergan Sales, LLC; Allergan USA, Inc.; and
AbbVie, Inc. The case is stayed as to the following marketing defendants due to the defendants’
pending bankruptcy proceedings: Endo Pharmaceuticals, Inc.; Endo Health Solutions, Inc.;
Par Pharmaceutical, Inc.; and Par Pharmaceuticals Companies, Inc. In a series of unopposed motions
2

Opioid Sellers “worked together to create illegitimate demand for dangerous

opioids and to unlawfully increase the supply to meet that demand,” causing an

epidemic of opioid misuse and opioid disorders that required the Hospitals to

incur the high cost of care for patients diagnosed with opioid misuse, addiction,

and dependency, with only partial reimbursement provided by private and

government insurance. The Hospitals contend that the court erred in

dismissing their complaint and that if the complaint was defective, the court

should have granted them leave to amend. We affirm the dismissal.

filed after oral argument, the Hospitals requested a limited stay of the appeal as to all other marketing
defendants based on pending settlements. We granted the stay.

The named distributor defendants are AmerisourceBergen Drug Corporation; Xcenda L.L.C.; Anda,
Inc.; Cardinal Health, Inc.; H.D. Smith, LLC; McKesson Corporation; Walgreen Co.; Walgreen Eastern
Co., Inc.; CVS Health Corporation; CVS Pharmacy, Inc.; CVS Orlando FL Distribution, L.L.C.; CVS TN
Distribution, L.L.C.; Rite Aid of Maine, Inc.; Rite Aid of Maryland, Inc.; P.J.C. Distribution Inc.; Eckerd
Corporation; Walmart Inc.; and Walmart Stores East, LP. The case is stayed as to the following
distributor defendants due to the defendants’ pending bankruptcy proceedings: Rite Aid of Maine,
Inc.; Rite Aid of Maryland, Inc.; P.J.C. Distribution, Inc.; and Eckerd Corporation. In unopposed
motions filed after oral argument, the Hospitals requested a limited stay of the appeal as to the
following distributor defendants based on pending settlements: AmerisourceBergen Drug
Corporation; Xcenda L.L.C.; Anda, Inc.; Cardinal Health, Inc.; H.D. Smith, LLC; and McKesson
Corporation. We granted the stay.

The complaint also named as defendants four individual sales representatives associated with one
or more businesses named as marketing defendants: Marc Blattstein, Jason Nagel, Frank Neel, and
Jeff Saucier. The complaint was dismissed with prejudice as to Nagel and Neel on December 13, 2022,
and without prejudice as to Blattstein on January 25, 2023. The Hospitals did not appeal those
dismissals, and those individuals have not participated in this appeal. The case is stayed as to
Jeff Saucier due to a pending bankruptcy.
3

I. BACKGROUND

[¶2] The following facts are drawn from the procedural record and the

Hospitals’ complaint, viewed in the light most favorable to them. See Meridian

Med. Sys., LLC v. Epix Therapeutics, Inc., 2021 ME 24, ¶ 2, 250 A.3d 122. The nine

Hospitals are non-profit corporations that operate hospitals in Maine. On

September 10, 2021, the Hospitals filed a complaint in the Superior Court

(Cumberland County) against the Opioid Sellers, all of whom they alleged

participated in the sale, marketing, and distribution of opioids in Maine.

[¶3] The complaint alleges six theories of liability for the Hospitals’

causes of action: negligence, public nuisance,3 unjust enrichment, fraud and

negligent misrepresentation, fraudulent concealment, and civil conspiracy. The

complaint’s 509 pages contain 1,847 numbered paragraphs of allegations that

in summary assert the following:

 The Opioid Sellers have engaged in a concerted effort to increase the use
of opioids to treat a wide array of medical conditions. Despite knowing
that opioids were addictive and that there was no evidence that they
were safe or effective for treating many medical conditions, the Opioid
Sellers fraudulently influenced regulatory bodies, doctors, and other
organizations to endorse and proselytize the efficacy of opioids and
concealed information regarding their risks, with the goal of increasing
their use through prescribing practices. Through these independent
actors, the Opioid Sellers successfully induced prescribers and hospitals

3 Although the complaint captions the Hospitals’ second claim broadly as a claim for “nuisance,”
it alleges that the Opioid Sellers engaged in interference with public rights only, thereby limiting the
claim to one for public nuisance. See infra ¶¶ 22-28.
4

to utilize opioids more extensively. It was foreseeable that many patients
who were prescribed opioids would misuse them. Nonetheless, the
Opioid Sellers continued to advocate for broader use of opioids and failed
to report data that clearly showed that demand for opioids exceeded
legitimate medical needs.

 As a foreseeable consequence, an epidemic of opioid misuse, addiction,
and dependency ensued nationwide, including in Maine. The Hospitals
have a legal obligation to provide treatment in many instances regardless
of whether they will be compensated, and they foreseeably incurred
various costs in coping with the epidemic of opioid misuse created by the
Opioid Sellers’ conduct. The Hospitals realized lower rates of return for
treating opioid-dependent patients, whose treatment is more complex
and costly than other patients. Additionally, the Hospitals incurred costs
identifying opioid-dependent patients, purchasing medically
unnecessary quantities of opioids, training personnel to treat opioid
overdoses, and hiring personnel to address safety concerns caused by
opioid-dependent patients.

[¶4] The matter was transferred to the Business and Consumer Docket

in May 2022. Later in May 2022, the Opioid Sellers filed multiple motions to

dismiss the complaint. The Hospitals opposed the motions to dismiss in August

2022 and requested leave to amend their complaint pursuant to

M.R. Civ. P. 15(a) if the court determined that the defendants’ motions should

be granted in whole or part.

[¶5] After hearing oral argument on the motions, the court entered an

order in February 2023 dismissing the complaint in its entirety as to all of the

Opioid Sellers. The court concluded that the complaint did not comply with

M.R. Civ. P. 8(a) (requiring any pleading setting forth a claim to contain “a short
5

and plain statement of the claim”) but elected not to dismiss the complaint on

that ground. The court instead examined the viability of the legal theories

underlying the allegations of the complaint to determine whether the Hospitals

could be “entitled to relief under any set of facts that [they] might prove in

support of [their] claim[s],” Bonney v. Stephens Mem’l Hosp., 2011 ME 46, ¶ 16,

17 A.3d 123 (quotation marks omitted). Viewing the factual allegations of the

complaint as though they were admitted, the court concluded that the Hospitals

could not recover under any of the legal theories pleaded in the complaint.

With respect to causation, the court concluded that as a matter of law the

alleged harm incurred by the Hospitals was too attenuated from the Opioid

Sellers’ alleged conduct to support recovery. The court also concluded that the

alleged damages were too speculative to be cognizable and were in any case

precluded by the federal Medicaid statute and regulations. See 42 U.S.C.A.

§ 1395cc(a)(1)(A)(i) (Westlaw through Pub. L. No. 118-157); 42 C.F.R. § 447.15

(2023). The court then addressed each of the theories of liability pleaded in the

complaint and concluded as a matter of law that

(1) the Hospitals’ negligence and negligent misrepresentation claims
could not succeed because the Opioid Sellers owed no duty to protect
the Hospitals from the harm alleged;
6

(2) the Hospitals’ public nuisance claim failed because the Opioid Sellers
did not interfere with a public right and the Hospitals did not suffer a
special injury;

(3) the Hospitals’ unjust enrichment claim failed because the Hospitals
did not allege that they had conferred any benefit upon the Opioid
Sellers for which restitution should be required;

(4) the fraud and fraudulent concealment claims failed because they were
not pleaded with particularity and instead stated sweeping and
general allegations; and

(5) the Hospitals’ civil conspiracy claim failed because it is not an
independent tort.

[¶6] The court’s order of dismissal did not grant the Hospitals leave to

amend their complaint. The Hospitals timely appealed. See 14 M.R.S. § 1851

(2024); M.R. App. P. 2B(c).4

II. DISCUSSION

[¶7] We begin by addressing the complaint’s compliance with the Maine

Rules of Civil Procedure. Then, after setting forth the applicable standard of

review, we address the sufficiency of the allegations to support each claim set

forth in the complaint.

4By consent of the parties, two amicus briefs have been submitted: one from the National
Association of Manufacturers, Product Liability Advisory Counsel, and Chamber of Commerce of the
United States of America; and the other from the Maine Hospital Association.
7

A. The Court’s Conclusion that the Hospitals’ Complaint Did Not
Comply with M.R. Civ. P. 8(a)

[¶8] The Hospitals argue that the complaint, although “assuredly long

and detailed, . . . was both sufficient to pass muster under M.R. Civ. P. 12(b)(6)

and appropriate for the claims pleaded.” They contend that the complaint

needed to be lengthy because of the factual and legal complexity of the case as

well as the number of parties.

[¶9] “Maine is a notice pleading state,” meaning that the complaint must

“give fair notice of the cause of action.” Howe v. MMG Ins. Co., 2014 ME 78, ¶ 9,

95 A.3d 79 (quotation marks omitted). To do so, the complaint must set forth

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” M.R. Civ. P. 8(a). “Each averment . . . shall be simple, concise, and direct.”

M.R. Civ. P. 8(e)(1). Although “[w]hat constitutes a ‘short and plain statement’

varies with the type of case[, a] verbose statement of the evidence relied upon

is not, of course, short and plain.” 2 Harvey, Maine Civil Practice § 8:2 at 353

(3d, 2024-2025 ed. 2024).

[¶10] The Hospitals’ complaint is decidedly not short or plain. The

complaint is over five hundred pages long and contains nearly two thousand

paragraphs of allegations—well beyond what we have previously deemed

outside the bounds of Rule 8. See Meridian Med. Sys., LLC, 2021 ME 24, ¶¶ 1, 4,
8

250 A.3d 122 (concluding that a thirty-two-page, 126-paragraph complaint

asserting multiple tort claims in a business dispute was not a “short and plain

statement”). The complaint provides a narrative of the history of the opioid

epidemic, citing books, articles, studies, and findings of federal investigations

to support its allegations. The complaint describes in eye-watering detail the

evidence the Hospitals presumably intend to rely upon to prove their claims,

but fails to link the cited evidence in a clear fashion to the elements of the claims

pleaded in the complaint.

[¶11] Moreover, the complaint is repetitious. The first two hundred

pages outline the factual basis for the Hospitals’ claims, and the last three

hundred repeat much of the same information separately as to each defendant.

Although complex cases may require more extensive pleading, the Hospitals’

complaint provides far more information at far greater length than is necessary

to set forth the basis for the claims. Even considering that the Hospitals were

required to plead their fraud claims “with particularity,” M.R. Civ. P. 9(b), the

Hospitals’ complaint greatly exceeds the bounds of permissible length for

pleading. The sheer length of the complaint would have justified its dismissal,

but the court’s dismissal was based instead on the legal insufficiency of the

Hospitals’ claims. Endorsing the court’s exercise of discretion in refraining
9

from dismissing the complaint because of its failure to comply with Rule 8(a)

and instead reaching the sufficiency of the complaint’s allegations as to each

element of each claim, we now review the court’s conclusions regarding the

sufficiency of the complaint, turning first to the standard of review.

B. Our Standard of Review for the Court’s Dismissal of the Complaint
for Failure to State a Claim Without Granting Leave to Amend

[¶12] Rule 15 of the Maine Rules of Civil Procedure governs the

amendment of complaints and other pleadings and establishes the general rule

that “leave [to amend] shall be freely given when justice so requires.”

M.R. Civ. P. 15(a). “After judgment on dismissal of a complaint for failure to

state a claim, the right to amend depends upon leave of court, but the

admonition to allow amendment ‘freely’ still applies. Amendment is ordinarily

permitted as a routine matter, at least the first time, if it appears that the defect

can be corrected.” 2 Harvey, Maine Civil Practice § 15:3 at 473 (3d, 2024-2025

ed. 2024); see Glynn v. City of South Portland, 640 A.2d 1065, 1067 (Me. 1994)

(holding that the court did not abuse its discretion in declining to allow

amendment when the amendment would not cure the complaint’s failure to

state cognizable claims); Kraul v. Me. Bonding & Cas. Co., 559 A.2d 338

(Me. 1989) (same).
10

[¶13] Upon analyzing the Hospitals’ allegations, the court concluded as a

matter of law that the Hospitals could not prevail on their theories of liability.

Presumably, the court did not grant leave to amend because the insufficiency of

the complaint could not be remedied. We therefore consider whether the

Hospitals’ complaint was legally deficient in pleading the Hospitals’ cause of

action and whether the defects could be corrected. “We review the legal

sufficiency of a complaint de novo, examining the complaint in the light most

favorable to the plaintiff to determine whether it sets forth elements of a cause

of action or alleges facts that would entitle the plaintiff to relief pursuant to

some legal theory.” Meridian Med. Sys., LLC, 2021 ME 24, ¶ 2, 250 A.3d 122

(quotation marks omitted).

C. The Legal Sufficiency of the Hospitals’ Theories of Liability

[¶14] The devastation to people and society that has resulted from what

is often called “the opioid epidemic” is hard to overstate. The wave of opioid

use disorders that has resulted from the opioids that have flooded America has

cost lives, orphaned children, decimated families, disrupted employers,

depleted social service agencies, and increased crime, and its effects continue

to reverberate throughout the nation. See U.S. Dep’t of Health & Human Servs.,

Facing Addiction in America: The Surgeon General’s Spotlight on Opioids 4 (Sept.
11

2018) (summarizing the consequences of the opioid epidemic). Legal and

illegal marketers, distributors, and sellers of opioids have been held liable in

civil and criminal actions across the nation. See Nora Freeman Engstrom &

Robert L. Rabin, Pursuing Public Health Through Litigation: Lessons from

Tobacco and Opioids, 73 Stan. L. Rev. 285, 307-21 (2021). But their liability is

not unlimited, nor does it run in favor of every plaintiff.

[¶15] As we explain below, the fundamental shortcoming in the

Hospitals’ cause of action is that the Hospitals have not directly suffered the

harm that they allege has been caused by the wrongful conduct of the Opioid

Sellers—opioid use disorders, including misuse, addiction, and dependency.

The Hospitals stand in the same position as the employers, family members,

crime victims, social service agencies, and others that have sustained economic

and non-economic losses in many forms as a result of the opioid epidemic

without having had opioid use disorders themselves. As real as the indirect

economic losses caused by opioid use disorders are, they are not necessarily

compensable as a matter of law. That the losses for which the Hospitals seek

compensatory damages are purely economic limits the Opioid Sellers’ liability

to the Hospitals. In contrast to the general duty of care to avoid causing physical

injury, the Restatement establishes as a general principle that “[a]n actor has
12

no general duty to avoid the unintentional infliction of economic loss on

another.” Restatement (Third) of Torts: Liab. for Econ. Harm § 1(1) & cmt. a

(2020). Although the Hospitals allege intentional tortious conduct, the

Hospitals do not and cannot in good faith allege that the Opioid Sellers’ tortious

intent was to inflict economic loss on the Hospitals.

1. Negligence

[¶16] In any negligence case, the plaintiff must prove that the defendant

breached a duty owed to the plaintiff and that the breach was the proximate

cause of the harm or loss for which the plaintiff seeks relief. See Bell ex rel. Bell

v. Dawson, 2013 ME 108, ¶¶ 17, 24, 82 A.3d 827. “Whether a defendant owes a

duty of care to a plaintiff is a matter of law for the court. In determining

whether a duty exists, we must ascertain whether the alleged wrongdoer is

under any obligation for the benefit of the particular plaintiff.” Bryan R. v.

Watchtower Bible & Tract Soc’y of N.Y., Inc., 1999 ME 144, ¶ 11, 738 A.2d 839

(1999) (citations and quotation marks omitted).

[¶17] The Opioid Sellers likely owed a common law duty of care to the

consumers of prescription opioids and arguably, under theories of contribution

or indemnification, to the health care providers who prescribed opioids and

thereby incurred potential liability to consumers. See Restatement (Second) of
13

Torts § 388 (1965); Emery v. Hussey Seating Co., 1997 ME 162, ¶ 9, 697 A.2d

1284; see also Merriam v. Wanger, 2000 ME 159, ¶ 8, 757 A.2d 778 (“Proximate

cause is that cause which, in natural and continuous sequence, unbroken by an

efficient intervening cause, produces the injury, and without which the result

would not have occurred.” (quotation marks omitted)). We have never held,

however, that a hospital that treats a victim injured by a negligent act can assert

its own negligence claim for the cost of treatment directly against the person

who caused the injury. Instead, a hospital’s claim derives from and depends on

the negligent party’s liability to the hospital’s injured patient—through

subrogation, see Me. Mun. Emps. Health Tr. v. Maloney, 2004 ME 51, ¶ 7, 846

A.2d 336, or under the Maine hospital lien statute, see 10 M.R.S. §§ 3411-3415

(2024), neither of which has been pleaded here. The Hospitals do not have a

cognizable direct claim of negligence against the Opioid Sellers.

2. Fraud, Fraudulent Concealment, and Negligent
Misrepresentation

[¶18] Just as their negligence claim relies on the Opioid Sellers’ alleged

breach of a duty of care owed to others, the Hospitals’ allegations of fraud,

fraudulent concealment, and negligent misrepresentation depend on the

Opioid Sellers’ fraudulent or negligent misrepresentations and omissions to
14

others, such as accrediting bodies, governmental agencies, prescribers, and

consumers.

[¶19] The torts of fraud and negligent misrepresentation both require

proof that the harm resulted from the plaintiff’s reliance on the defendant’s

misrepresentation that is the basis of the claim. See Barr v. Dyke, 2012 ME 108,

¶ 16, 49 A.3d 1280; Binette v. Dyer Libr. Ass’n, 688 A.2d 898, 903 (Me. 1996).5

Likewise, the elements of a claim of fraudulent concealment include the

plaintiff’s detrimental reliance on the defendant’s failure to disclose a material

fact in violation of a legal or equitable duty to disclose. Picher v. Roman Cath.

Bishop of Portland, 2009 ME 67, ¶ 30, 974 A.2d 286. The irremediable difficulty

with the Hospitals’ fraud, fraudulent concealment, and negligent

misrepresentation claims is that the Hospitals do not and cannot in good faith

allege that in rendering treatment to patients with opioid use disorders they

were acting in reliance upon any fraudulent or negligent misrepresentation or

failure to disclose by any Opioid Seller. Their treatment of those patients was

pursuant to their mission and not based on reliance on the Opioid Sellers. Their

5See Restatement (Third) of Torts: Liab. for Econ. Harm § 11 (2020) (“The person to whom a
fraudulent misrepresentation is made can recover against its maker for economic loss only if: (a) that
person relies on the misrepresentation in acting or refraining from action; (b) the reliance is
justifiable; and (c) the misrepresentation causes the loss.”); id. § 5 (1) (providing that a person
engaged in trade or business who “supplies false information for the guidance of others is subject to
liability for pecuniary loss caused to them by their reliance upon the information, if the actor fails to
use reasonable care in obtaining or communicating it”).
15

claims fail as a matter of law due to the absence of the reliance element common

to the torts of fraud, fraudulent concealment, and negligent misrepresentation.

3. Unjust Enrichment

[¶20] A claimant for unjust enrichment must prove that “(1) it conferred

a benefit on the other party; (2) the other party had appreciation or knowledge

of the benefit; and (3) the acceptance or retention of the benefit was under such

circumstances as to make it inequitable for it to retain the benefit without

payment of its value.” Tucci v. City of Biddeford, 2005 ME 7, ¶ 14, 864 A.2d 185.

The Hospitals contend that they conferred a recoverable benefit on the Opioid

Sellers by funding the cost of treating opioid misuse caused by the Opioid

Sellers and that it would be inequitable for the Opioid Sellers to retain the

benefit without compensating the Hospitals.

[¶21] At first glance, it might seem that the Hospitals’ unjust enrichment

claim fails at the outset because they did not confer any benefit on the Opioid

Sellers. However, the claim could be viewed as a claim for equitable

subrogation, a theory of liability rooted in restitution and unjust enrichment.

See N. E. Ins. Co. v. Concord Gen. Mut. Ins. Co., 433 A.2d 715, 719 (Me. 1981). The

operative principle of equitable subrogation is that “[o]ne who pays a debt that

in equity and good conscience should have been paid by another succeeds to the
16

rights of the payee against the other.” Id. (emphasis added). Under the theory

of equitable subrogation, the Hospitals can be deemed to have conferred a

benefit upon the Opioid Sellers if the Opioid Sellers—rather than the

Hospitals—should have funded the costs of treating the Hospitals’ patients who

suffer from opioid use disorders. But that proposition assumes that the Opioid

Sellers would be found liable under some theory to pay the medical bills of each

of the patients whose treatment figures into the Hospital’s claimed

compensatory damages regardless of the individual circumstances of the

patients. Because such liability would need to be alleged and proved on an

individual basis based on the facts supporting each patient’s claim or claims

against the Opioid Sellers, we cannot make the categorical assumption of law

that the claim requires. For that reason, the Hospitals’ unjust enrichment claim

fails as a matter of law.

4. Public Nuisance

[¶22] The Hospitals’ claim for public nuisance asserts that the Opioid

Sellers’ acts and omissions interfered with public health, that public health is a

cognizable public right, and that the Hospitals’ unreimbursed costs resulting

from the opioid epidemic are a special injury distinct from the injury that the

nuisance inflicted upon the public.
17

[¶23] The tort of nuisance comprises two broad categories: public

nuisance, also known as common nuisance, see Foley v. H. F. Farnham Co.,

135 Me. 29, 31, 188 A. 708, 710 (1936), and private nuisance, see Johnston v. Me.

Energy Recovery Co., 2010 ME 52, ¶ 15, 997 A.2d 741. The distinction between

the two is essentially that a public nuisance involves a harm that “violates

public rights, and produces a common injury,” Foley, 135 Me. at 31, 188 A. at

710, whereas a private nuisance involves a harm to the rights, interests, or

property of particular persons, see Johnston, 2010 ME 52, ¶ 15, 997 A.2d 741.

At common law, a public nuisance “may be said to be anything wrongfully done,

or permitted, which violates public rights, and produces a common injury;

when it injures that portion of the public that necessarily comes in contact with

it.” Foley, 135 Me. at 31, 188 A. at 710; Restatement (Second) of Torts § 821B

cmt. g (1979) (indicating that a condition may create a public nuisance when it

“deprives all members of the community” of a public right that is “common to

all members of the general public”). A private nuisance “consists in a use of

one’s own property in such a manner as to cause injury to the property, or other

right, or interest of another.” Johnston, 2010 ME 52, ¶ 15, 997 A.2d 741

(quotation marks omitted).
18

[¶24] Nuisance is a common law tort, but the Maine Legislature has

enacted statutes declaring a wide variety of activities to be actionable

nuisances. See 17 M.R.S. §§ 2791-2808 (2024). The Hospitals’ complaint

recites that their nuisance claim is brought under the common law and

17 M.R.S. § 2701 (2024), which applies to public nuisances and private

nuisances and “provides a cause of action for damages for a common law

nuisance.” Johnston, 2010 ME 52, ¶ 16 n.1, 997 A.2d 741. Section 2701 states:

“Any person injured in his comfort, property or the enjoyment of his estate by

a common and public or a private nuisance may maintain against the offender

a civil action for his damages, unless otherwise specially provided.”

[¶25] The Restatement (Second) of Torts § 821B(2)(a) recognizes that a

condition creating a significant interference with “the public health [or] the

public safety” may support a public nuisance claim. A government official or

agency with jurisdiction to bring claims for harm caused to public property or

resources has standing under the common law to bring a public nuisance action

on behalf of the public. See Larson v. New England Tel. & Tel. Co., 141 Me. 326,

338, 44 A.2d 1, 7 (1945) (“[A] public nuisance is abatable by the proper

officials.”); Smedberg v. Moxie Dam Co., 148 Me. 302, 311, 92 A.2d 606, 610

(1952) (“The State, and the State alone, on the facts set forth in this complaint
19

has the right to complain against acts of the defendant which may constitute a

public nuisance.”); 17 M.R.S. § 2741(2) (2024) (authorizing the Attorney

General, a district attorney, or seven “legal voters of that county” to seek

abatement of certain common nuisances).

[¶26] However, at common law and under 17 M.R.S. § 2701, the ability

of a private plaintiff to bring a public nuisance claim is limited. At common law,

“[i]t is not enough that [the] plaintiff has been damaged”; the plaintiff “must

show an infringement of private rights,” Smedberg, 148 Me. at 311, 92 A.2d at

611, resulting in “special legal injury different in kind as well as degree from

that suffered by others.” Whitmore v. Brown, 102 Me. 47, 58, 65 A. 516, 520

(1906); see Kennebunk, Kennebunkport & Wells Water Dist. v. Maine Tpk. Auth.,

145 Me. 35, 54-55, 71 A.2d 520, 531 (1950) (holding that a water utility that

had no right to obtain water from a brook except as a member of the public

could not recover for public nuisance against a polluter of the water supply);

Smedberg, 148 Me. at 310-11, 92 A.2d at 610 (holding that a sporting camp

owner, whose right to fish in and use a lake was no different than the public’s,

could not recover for loss of access to lake amenities); see also Restatement

(Third) of Torts: Liab. for Econ. Harm § 8 (2020) (“An actor whose wrongful

conduct harms or obstructs a public resource or public property is subject to
20

liability for resulting economic loss if the court concludes that the claimant’s

losses are distinct in kind from those suffered by members of the affected

community in general.”).6

[¶27] In “provid[ing] a cause of action for damages for a common law

nuisance,” Johnston, 2010 ME 52, ¶ 16 n.1, 997 A.2d 741, section 2701 echoes

our common law precedent by requiring that a plaintiff in any private or public

nuisance action be “injured in his comfort, property, or the enjoyment of his

estate.” See Johnston, 2010 ME 52, ¶ 14, 997 A.2d 741 (quotation marks

omitted). In other words, as our common law precedent requires, the nuisance

must infringe on a right particular to the plaintiff and cause injury different in

kind from the injury to the public generally.

A comment to section 8 indicates that public nuisance claims based on dangerous consumer
6

products are better presented as product liability claims:

Tort suits seeking to recover for public nuisance have occasionally been brought against the
makers of products that have caused harm, such as tobacco, firearms, and lead paint. These cases
vary in the theory of damages on which they seek recovery, but often involve claims for economic
losses the plaintiffs have suffered on account of the defendant’s activities; they may include the costs
of removing lead paint, for example, or of providing health care to those injured by smoking
cigarettes. Liability on such theories has been rejected by most courts, and is excluded by this
Section, because the common law of public nuisance is an inapt vehicle for addressing the conduct at
issue. Mass harms caused by dangerous products are better addressed through the law of products
liability, which has been developed and refined with sensitivity to the various policies at stake. . . .

. . . [P]roblems caused by dangerous products might once have seemed to be matters for the law
of public nuisance because the term “public nuisance” has sometimes been defined in broad language
that can be read to encompass anything injurious to public health and safety. The traditional office
of the tort, however, has been narrower than those formulations suggest, and contemporary case law
has made clear that its reach remains more modest.

Restatement (Third) of Torts: Liab. for Econ. Harm § 8 cmt. g (2020).
21

[¶28] Assessed against this standard, the Hospitals’ public nuisance

claim cannot stand. On its face, the Hospitals’ complaint fails to state a claim;

although it may allege a nuisance interfering with public rights, it does not

allege that the defendants caused a nuisance that interfered with a separate

right of the Hospitals. See 17 M.R.S. § 2701. The nuisance that the Hospitals

allege the Opioid Sellers proximately caused is an increase in the incidence of

opioid misuse. See Town of Stonington v. Galilean Gospel Temple, 1999 ME 2,

¶¶ 19-21, 722 A.2d 1269 (discussing whether a complaint adequately alleged

that each defendant’s conduct proximately caused a nuisance). Although the

Hospitals claim that the nuisance caused them “special injury” in the form of

unreimbursed costs attributable to opioid misuse,7 the Hospitals’ injury is but

a subset of the injuries to the public occasioned by the increase in opioid

misuse; it is no different in kind from the injury to the public. The nature of the

Hospitals’ health care mission means that their economic loss caused by the

opioid epidemic took the form of the unreimbursed cost of treating patients

7 The Hospitals’ complaint alleges special injury as follows:

As a result of Defendants’ actions, Plaintiffs have suffered a special injury, different from that
suffered by the public at large, by individual users, and by governmental entities. Plaintiffs have
suffered a broad range of adverse operational impacts, including, but not necessarily limited to
(1) the lower rate of realization from the provision of health care to patients with opioid-related
conditions, (2) elevated operational expenses incurred to respond to the conditions created by the
opioid epidemic, and (3) the cost of purchasing opioids Plaintiffs would not have otherwise
purchased but for Defendants’ conduct.
22

with opioid use disorders, whereas the economic losses the Opioid Sellers may

have caused to the public—including private and governmental entities,

employers, family members, others who served and supported those suffering

from opioid use disorders, and taxpayers who funded the cost of the

governmental response to the opioid epidemic—have taken a wide variety of

different forms. But there is ultimately no difference in kind between the injury

to the Hospitals and the injury to the public—we all have suffered the

devastating human, social, and economic effects that result from an increase in

opioid misuse. The alleged injuries to the Hospitals are not sufficiently

particular to the Hospitals to support a public nuisance claim; they are instead

part of the broad public injury resulting from increased opioid misuse and

therefore may not be addressed in a private cause of action. See Smedberg,

148 Me. at 310-11, 92 A.2d at 610-11.8

8 A comparison to the special injury claimed by the plaintiff in Smedberg illustrates the point. The

plaintiff in Smedberg was a sporting camp owner who claimed special injury in the form of lost boat
rentals and customer revenues as a result of losing access to Lake Moxie for boating and fishing—
economic loss of a different type than the loss sustained by other users of the lake. Smedberg v. Moxie
Dam Co., 148 Me. 302, 310-11, 92 A.2d 606, 610-11 (1952). Still, we decided that the plaintiff’s right
to lake access and his injury resulting from the alleged public nuisance—loss of lake access—were
no different than the rights held and injury incurred by the public. Id. Similarly, the opioid epidemic
did not infringe on any right of the Hospitals greater than or different from the rights of the public to
be shielded from the ill effects of opioid misuse and opioid use disorders and did not proximately
cause the Hospitals injury in the form of economic loss different in kind from the injury in the form
of economic loss that it caused to the public.
23

5. Civil Conspiracy

[¶29] The Hospitals’ claim of civil conspiracy “fails as the basis for the

imposition of civil liability absent the actual commission of some independently

recognized tort.” Cohen v. Bowdoin, 288 A.2d 106, 110 (Me. 1972) (emphasis

omitted). Because their complaint fails to state a cognizable claim of a separate

tort, the court correctly dismissed the civil conspiracy claim. See Potter,

Prescott, Jamieson & Nelson, P.A. v. Campbell, 1998 ME 70, ¶ 8, 708 A.2d 283.

III. CONCLUSION

[¶30] The Hospitals’ complaint does not state facts sufficient to support

any of the causes of action that they have alleged. Moreover, the complaint’s

deficiencies involve an irremediable inability to meet at least one element of

each of the theories of liability alleged, such as duty, reliance, and particularized

injury. It therefore would have been futile for the court to have granted the

Hospitals leave to amend their complaint. We affirm the judgment of the

Superior Court dismissing the Hospitals’ complaint for failure to state a claim

upon which relief can be provided. See M.R. Civ. P. 12(b)(6).

The entry is:

Judgment affirmed.
24

Kelly W. McDonald, Esq., Murray, Plumb & Murray, Portland, and Daniel H.
Charest, Esq. (orally), Burns Charest LLP, Dallas, Texas, for appellants Eastern
Maine Medical Center, Aroostook Medical Center, Blue Hill Memorial Hospital,
Charles A. Dean Memorial Hospital, Inland Hospital, Maine Coast Regional
Health Facilities, Mercy Hospital, MRH Corp., and Sebasticook Valley Health

Geraldine G. Sanchez, Esq., Roach Ruprecht Sanchez & Bischoff, P.C., Portland;
Conor B. O’Croinin, Esq., and William J. Murphy, Esq. (orally), Zuckerman
Spaeder LLP, Baltimore, Maryland; and Devon Galloway, Esq., Zuckerman
Spaeder LLP, New York, New York for appellees CVS Pharmacy, Inc.; CVS
Orlando FL Distribution L.L.C.; and CVS TN Distribution, L.L.C.

Johanna L. Gauvreau, Esq., McCoy Leavitt Laskey, Falmouth; Kate Wallace, Esq.,
Jones Day, Boston, Massachusetts; and Anthony J. Dick, Esq., Jones Day,
Washington, District of Columbia, for appellees Walmart Inc. and Wal-Mart
Stores East, LP

David P. Ginzer, Esq., Richardson Whitman Large & Badger, Portland; and Alex
J. Harris, Esq., Bartlit Beck LLP, Denver, Colorado, for appellees Walgreen Co.
and Walgreen Eastern Co., Inc.

Richard P. Olson, Esq., and Emily P. Crowley, Esq., Curtis Thaxter LLC, Portland;
and George A. Borden, Esq., Steven M. Pyser, Esq., and Richard S. Cleary, Jr., Esq.,
Williams & Connolly LLP, Washington, District of Columbia, for appellee
Cardinal Health, Inc.

Jeffrey D. Russell, Esq., Verrill Dana, Portland; and Brian T. Himmel, Esq., Reed
Smith LLP, Pittsburgh, Pennsylvania, for appellee H.D. Smith, LLC

Jeffrey D. Russell, Esq., Verrill Dana, Portland; Kim M. Watterson, Esq., Reed
Smith LLP, Pittsburgh, Pennsylvania; and Louis W. Schack, Esq., Reed Smith
LLP, Philadelphia, Pennsylvania for appellees AmerisourceBergen Drug
Corporation and Xcenda, LLC
25

Theodore Small, Esq., and Braden M. Clement, Esq., Skelton, Taintor & Abbott,
Lewiston; and Randall Mark Levine, Esq., Morgan, Lewis & Bockius LLP,
Washington, District of Columbia for appellees Cephalon, Inc.; Teva
Pharmaceuticals USA, Inc.; Watson Laboratories, Inc.; Actavis Pharma, Inc.
f/k/a Watson Pharma, Inc.; and Actavis LLC

Sigmund D. Schutz, Esq, PretiFlaherty, Portland, for appellees Allergan Finance,
LLC, f/k/a Actavis, Inc. f/k/a Watson Pharmaceuticals, Inc.; and Abbvie Inc.

William D. Pandolph, Esq., Sulloway & Hollis, PLLC, Concord, New Hampshire,
and Christian Pistilli, Esq., Covington & Burling, LLP, Washington, District of
Columbia, for appellee McKesson Corporation

James M. Campbell, Esq., and Michelle I. Schaffer, Esq., Campbell Conroy &
O’Neil, P.C., Boston, Massachusetts; Stephen Brody, Esq., O’Melveny & Myers
LLP, Washington, District of Columbia; and Charles Lifland, Esq., and Amy
Laurendeau, Esq., O’Melveny & Myers LLP, Los Angeles, California, for appellees
Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen
Pharmaceuticals, Inc.; and Janssen Pharmaceutica, Inc.

Jesse E. Weisshaar, Esq., and Philip Goldberg, Esq., Shook, Hardy & Bacon L.L.P.,
Washington, District of Columbia, for amici curiae National Association of
Manufacturers, Product Liability Advisory Council, and Chamber of Commerce
of the United States of America

Timothy H. Norton, Esq., Kelly, Remmel & Zimmerman, Portland, for amicus
curiae Maine Hospital Association

Business and Consumer Docket docket number CIV-2022-25
FOR CLERK REFERENCE ONLY