Downstream Is Too Far: N.D. Illinois Dismisses School Districts’ Opioid Claims Against Marketing Vendors

A recent order from the Northern District of Illinois shows just how far public entities will go in trying to spread blame for opioid use and abuse, and in Baltimore City Board of School Commissioners v. Publicis Health, LLC, the district court found that a group of school districts reached too far.  No. 24 CV 11435, 2026 WL 2935336 (N.D. Ill. Sept 30, 2026).  The plaintiffs were twelve school districts seeking special education and related costs tied to Neonatal Opioid Withdrawal Syndrome, and while most opioid litigation has been waged against defendants that sold prescription medicine, these plaintiffs took a different tack.  They sued three companies that allegedly helped to market opioids: an advertising agency, an electronic health records vendor, and a sales consultant. 

Similar to other public entities, the plaintiff school districts purported to allege that consulting around the marketing of prescription opioids constituted a public nuisance.  As we have said before, this is a square peg in a round hole, but these plaintiffs tried anyway. 

It did not work.  The district court had already dismissed the districts’ RICO claims, ruling that the complaint did not allege a direct relationship between the allegedly wrongful conduct and the alleged injury.  That was because the physicians, pharmacists, and parents stood between the defendants’ conduct and the school districts’ alleged additional costs.  The amended complaint repled the case under state law, asserting public nuisance, negligence, gross negligence, civil conspiracy, and aiding and abetting on behalf of seven statewide classes.  As the court put it, the motions to dismiss were “fundamentally about whether the downstream effects of the opioid epidemic give the districts claims against these defendants.”  Id. at *1.

Preliminarily, one of the defendants had already settled with the Attorneys General of all the states where the school districts were located, and that defendant justifiably argued that the plaintiff school districts could not accept the benefit of those public settlements and also sue on their own.  The court rejected that argument, reasoning that the AGs did not purport to represent the school districts and that the consent judgments did not purport to release the school districts’ claims.

On the merits, though, the defendants prevailed on all claims.  On public nuisance, the school districts did not allege a “special injury.”  A public nuisance is “an unreasonable interference with a right common to the general public.”  Id. at *6 (citing Restatement (Second) of Torts § 821B(1)).  A private party may sue only if it “suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.”  Baltimore City, at *6.  This is the “special injury” requirement. 

On this score, the school districts’ claims were similar to a hospital’s claims for the alleged costs of treating opioid-affected patients:  Such alleged harms are no different in kind from the public’s injury and cannot be special injuries sufficient to support public nuisance.  As another district judge observed in another opioid-related proceeding, “[I]f everyone’s injury is special, no one’s is.”  Id.  Moreover, there is no exception for governmental entities.  A plaintiff suing for the public needs authority “to represent the state,” and the school districts did not have it.  In some ways, the school districts were talking out of both sides of their mouths.  On the one hand, they disavowed their representative capacity to evade the AG settlements, but then purported to drape themselves in a governmental mantle in claiming public nuisance.  This doublespeak left them holding a losing bag. 

The school districts’ other state-law claims failed, too.  On negligence, the school districts effectively abandoned any argument that the defendants owed them a direct duty, which forfeited the point.  In any event, courts consistently decline to find that a consultant owes a duty to strangers allegedly injured by a client’s use of its advice.  The client’s Corporate Integrity Agreement similarly created no tort duty for vendors, and the plaintiffs did not cite any legal provision enacted to protect institutions that bear the cost of drug misuse.

The court’s causation analysis is especially notable.  It distinguished its RICO ruling, explaining that state common law turns on foreseeability, so the number of intervening actors is not alone a reason to dismiss.  Even so, the school districts’ alleged loss is purely economic and derivative of injuries to third parties too remote to support liability.  As the court stated, “[T]he school districts’ injury is not physical harm to their persons or property but the cost of serving people harmed by someone else—economic loss that is wholly derivative of injuries to third parties.  That kind of loss is too remote to be recovered in tort by the party who absorbs it, whatever its foreseeability.”  Id. at *9. 

Finally, the school districts could not hold the defendants liable for the alleged torts of prescription opioid manufacturers under conspiracy and aiding and abetting theories.  Civil conspiracy and aiding and abetting are not standalone claims, and each requires an underlying tort committed against the plaintiff.  The complaint never alleged what duty any manufacturer owed a school district, or under which state’s law.  And, the federal Controlled Substances Act protects individuals, not institutional payors, so it could not supply a negligence per se predicate, either.  In the end, “Without a tort committed against them, there is nothing for defendants to have conspired in or aided.”  Id. at *12. 

To remove all doubt, the court further ruled that the plaintiffs’ negligence-based claims were time barred, except for the plaintiffs located in Maine.  Two of the plaintiffs sued prescription opioid manufacturers in 2019, and the plaintiff school districts did not dispute that they knew of their alleged injuries by that time.  The plaintiffs also knew or could have known the identity of these marketing-related defendants then or shortly thereafter.  Only Maine’s longer, six-year statute of limitations could accommodate the plaintiffs’ claims. 

The court denied leave to amend because its rulings were legal in nature, and the plaintiffs had already had multiple opportunities to amend.  We will return to our square-peg-in-a-round-hole analogy.  Public nuisance claims should not be based on the legal sale of products, including prescription drugs.  That is especially true here, where school districts attempted to recover from actors too far removed any alleged harms and for alleged injuries derived from harm to others.