OPINION AND ORDER

DAN AARON POLSTER, District Judge.

Before the Court is the Motion of Plaintiffs Cuyahoga and Summit Counties for Partial Summary Adjudication of their Equitable Claims for Abatement of an Absolute Public Nuisance (Doc. #: 1890). Upon careful consideration of the parties' respective arguments1 and for the reasons stated below, the motion is DENIED.

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Plaintiffs move for an order ruling as a matter of law that: (i) the opioid crisis constitutes a public nuisance, an essential element of their claim of absolute public nuisance; and (ii) upon a finding of nuisance liability, Defendants will be jointly and severally responsible for the equitable abatement of the alleged public nuisance, and may not rely on their affirmative defenses to the contrary.

I. The Existence of a Public Nuisance.

Plaintiffs assert the "opioid epidemic constitutes an ongoing public nuisance under Ohio law" and that no reasonable fact-finder could determine otherwise. They ask the Court to award partial summary judgment declaring that the opioid crisis significantly interferes with public health and therefore establishes the existence of a nuisance.2 (Doc. #: 1890 at 2-4, 22).

Under Ohio law, "it is the province of the court to define a nuisance and the province of the [finder of fact] to determine whether the circumstances of the particular case come within the definition of a nuisance." City of Hamilton v. Dilley, 165 N.E. 713, 714 (Ohio 1929); City of Toledo v. Gorney, 1988 WL 128304, at *3 (Ohio Ct. App. Dec. 2, 1988) (same). Ohio follows the Restatement of the Law (Second) Torts, which broadly defines public nuisance as "an unreasonable interference with a right common to the general public." Cincinnati v. Beretta U.S.A., 768 N.E.2d 1136, 1142 (Ohio 2002) (quoting Restatement § 821B(1)). The Ohio Supreme Court has explained:

Id. (emphasis added). To prove an absolute public nuisance cause of action, evidence must establish: (1) intentional or unlawful conduct or omission by the defendant; (2) that unreasonably interferes with a right common to the general public; and (3) a causal relationship between a defendant's conduct and a plaintiff's injury. See, e.g., id. at 1141-1144; City of Cleveland v. JP Morgan Chase Bank, N.A., 2013 WL 1183332, at *3-*4 (Ohio Ct. App. March 21, 2013).

To support their position, Plaintiffs cite statistics and testimony pertaining to the types and extent of harm attributable to opioid-related problems in each of the Counties (Doc. 1890 at 4-14 and referenced exhibits). Plaintiffs contend that statements by certain Defendants acknowledging the existence of an "opioid epidemic" and "public health crisis," demonstrate the absence of any dispute as to whether the burden to prove the existence of a nuisance is satisfied. (Id. at 14-22 and referenced exhibits).

Responding, Defendants maintain the existence of an opioid crisis in and of itself does not constitute a public nuisance because the analysis must also consider the conduct allegedly creating the nuisance. Specifically, they assert that "the existence of an `unreasonable interference' requires an assessment of the effect of the alleged wrongful conduct;" therefore, the first and second elements of the claim should be determined together. (Doc. #: 2163 at 4-5; Doc. #: 2304 at 2).3 Plaintiffs reply that "a nuisance is a harmful condition — not a defendant's conduct." (Doc. #: 2540 at 2).

Plaintiffs fail to persuade the Court that separate adjudication of the closely connected harm and conduct elements is either useful or advisable. The interrelated nature of these elements is evident in the Restatement's use of the phrase "unreasonable interference" to define both cognizable harm and actionable conduct. See Restatement § 821B(1)-(2); Cincinnati v. Beretta, 768 N.E.2d at 1142. The Court finds the two elements to be intertwined and not independently determinable as a matter of law in these actions. Whether the opioid crisis constitutes a public nuisance is a question that must await full airing of the facts at trial.

Accordingly, Plaintiffs motion is denied to the extent it seeks summary adjudication of the existence of a public nuisance.

II. Joint and Several Liability.

Plaintiffs move to strike Defendants' affirmative defenses that assert they are not jointly and severally liable for abatement of the alleged public nuisance. Plaintiffs ask the Court to rule now that any Defendant found responsible for creating or maintaining the public nuisance will be held jointly and severally liable for its abatement. Plaintiffs contend this ruling regarding liability for the equitable relief they seek is not barred by Ohio's apportionment statute and is available under Ohio common law. (Doc. #: 1890 at 22-26; Doc. #: 2540 at 6-10).

A. Ohio Statutory Law.

Plaintiffs assert that joint and several liability for their public nuisance claims is not barred by the Ohio apportionment statute, which provides,

Ohio Rev. Code ("O.R.C.") § 2307.22(a)(1)-(2). Plaintiffs argue the statute by its terms applies only to tort claims seeking "compensatory damages that represent economic loss," and is therefore inapplicable to their equitable abatement claims. (Doc. #: 1890 at 24-25).

Defendants respond that the statute does bar joint and several liability. Defendants note that nuisance actions are tort claims. (Doc. 2163 at 9-10). However, the fact that "nuisance" is sometimes characterized as a variety of "tort" does not change the fact that an equitable claim to abate a nuisance is not a tort claim seeking compensatory damages. Defendants also argue that what Plaintiffs' label as a claim for "abatement costs" is in fact a "claim for damages." (See Doc. #: 2540 at 8-9). This point is not well-taken for the reasons explained in the Court's recent Order denying Defendants' motion to exclude Plaintiffs' abatement experts.4 Unlike tort damages that compensate an injured party for past harm, abatement is equitable in nature and provides a prospective remedy that compensates a plaintiff for the costs of rectifying the nuisance.

Nor does Ohio's statutory definition of "economic loss" bar a judgment of joint and several liability for abating a nuisance.5 The statutory definition encompasses compensation for future medical and rehabilitation expenses of an injured person who is the subject of a tort. (Doc. #: 2163 at 9-12; Doc. #: 2304 at 4-6). Defendants note that certain components of the abatement relief Plaintiffs seek relate to medical care and argue that, therefore, it is really "economic loss." (Doc. #: 2163 at 11). But the fact that abatement relief may encompass medical care does not alter the fact that the only recovery limited by the apportionment statute is "compensatory damages," and that is not what Plaintiffs are seeking.

Accordingly, the Court finds that O.R.C. § 2703.22 does not bar joint and several liability for abatement of a nuisance. Put differently, there is nothing in this statute that precludes application of the doctrine of joint and several liablity on Defendants. As discussed below, however, neither does the statute bar Defendants from arguing at trial that the fault of any Defendants found liable for creating the nuisance should be determined on a proportional basis.

B. Ohio Common Law.

Plaintiffs assert that under Ohio common law, where a nuisance is caused by the conduct of multiple parties acting either independently or in concert, all are jointly and severally liable for abating the nuisance. (Doc. #: 1890 at 22-23; Doc. #: 2540 at 9). But the authority on which Plaintiffs rely does not support a conclusion that nuisance liability is necessarily joint and several as a matter of law. Plaintiffs cite only weak dicta from a decision distinguishing the damages action at issue from equitable suits, where culpable defendants are "generally" jointly liable for abating the nuisance. See City of Columbus v. Rohr, 1907 WL 572, *2 (Ohio 1907). State ex rel. Montgomery v. Portage Landfill & Dev. Co. is similarly unpersuasive. See 1999 WL 454623, at *3, *6 (Ohio Ct. App. June 30, 1999) (affirming trial court's finding that there was no right to a jury trial of equitable claims, therefore affirming the unappealed judgment that held defendants jointly and severally liable).

Defendants contend that an apportionment of harm at this stage of the litigation is premature. (Doc. #: 2163 at 12-14; Doc#: 2304 at 5-6). The Court agrees that any apportionment decision depends on factual issues to be determined at trial, including: (1) whether the alleged wrongful conduct by each Defendant was a substantial factor in creating the claimed nuisance; and, (2) if so, whether the resulting harm can be ascertained on a proportional basis or is indivisible. See Pang v. Minch, 559 N.E.2d 1313, 1323-1324 (Ohio 1990) (determining whether harm is capable of apportionment is "judicial function" but "it would be error to conclude, prior to trial, that such apportionment was possible").

The framework articulated in Pang v. Minch, cited by Defendants, provides a useful procedural guide:

559 N.E.2d 1313, 1323-1324 (Ohio 1990); see also Restatement § 433A, cmt.i ("Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.").6

Because the material questions of fact in this litigation must be resolved at trial prior to any apportionment ruling, the Court (i) denies Plaintiffs' motion to the extent it seeks a ruling that public nuisance liability is joint and several as a matter of law, and (ii) denies Plaintiffs' request to strike Defendants' affirmative defenses to such liability.

III. Conclusion.

Based on the foregoing, the Motion of Plaintiffs Cuyahoga and Summit Counties for Partial Summary Adjudication of their Equitable Claims for Abatement of an Absolute Public Nuisance, (Doc. #: 1890), is DENIED.

IT IS SO ORDERED.