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Oklahoma's opioid case heads into trial after similar public nuisance argument fails in North Dakota


By Karen Kidd | May 22, 2019

| MorgueFile - cohdra

OKLAHOMA CITY (Legal Newsline) – The nation's leading manufacturer of prescription opioids, including OxyContin, got some breathing room earlier this month when a federal judge in North Dakota dismissed one of dozens of cases against it, a university law school chair said during a recent interview.

But defendants have plenty of battles left, said Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law at University of Georgia's School of Law. After all, there are literally thousands of cases blaming companies involved in the making and distribution of opioids for the nation's addiction crisis.

"The North Dakota dismissal helps, but remember that the Oklahoma suit will be going to trial next week," Burch said.

Elizabeth Chamblee "Beth" Burch, Fuller E. Callaway Chair of Law at University of Georgia's School of Law | law.uga.edu

Oklahoma Attorney General Mike Hunter's 2017 lawsuit accused Purdue Pharma and two other companies, Johnson & Johnson and Teva Pharmaceutical Industries, of deceptive marketing and downplaying addiction risks associated with opioid pain killers. In March, Hunter confirmed the state reached a $270 million settlement with Purdue Pharma and the attorney general appears poised to take on the other two companies in trial set to begin Tuesday, May 28.

How the Oklahoma case pans out likely will influence how other cases will go.

Last month, a federal judge in Cleveland overseeing a huge, almost 1,600-plaintiff opioid multidistrict litigation, or MDL, declined to dismiss claims by two Ohio counties that have been established as bellwether plaintiffs.

Earlier this month, Pennsylvania filed suit against Purdue Pharma, a day before five other states also filed litigation against the opioid manufacturer, bringing to the total number of cases against the OxyContin dealer to 44.

Almost a week before those cases were filed, Burleigh County District Court Judge James Hill handed Purdue Pharma a win when he tossed North Dakota's opioid claim against the company.

In his 27-page order, Hill said the opioid dealer cannot control how its customers use their drugs and that North Dakota's case oversimplified the complicated history that has led to an epidemic of opioid addition.

"The connection between the alleged misconduct and the prescription depends on multiple, independent intervening events and actors," Hill wrote in his order. "The state's effort to hold one company to account for this entire, complex public health issue oversimplifies the problem."

Hill handed down his order in Purdue's motion for dismissal, in which the company argued in part that the state was trying to promote liability on "lawful promotion" of drugs that have been Food and Drug Administration-approved. Such claims are pre-empted under federal law, according to Purdue's motion, which also argued North Dakota's public nuisance laws do not cover the sale of goods.

In his order, Hill agreed with Purdue Pharma on its public nuisance statute exclusion argument.

"The idea behind public nuisance is that some nuisances are essentially public wrongs and are thus actionable by the government," Burch said. "But theories of public nuisance didn't fare well in the gun or lead paint lawsuits because the manufacturers didn't have a specific duty to the public."

North Dakota's attorney general has said he will appeal Hill's decision.

Hill's decision might indicate that using public nuisance laws as the basis of opioid addiction litigation may be just as unsuccessful as similar strategies were in gun violence litigation against firearms manufacturers, Burch, a critic of the MDL litigation process, said.

"Just as gun violence results from third-party acts - and the guns aren't under control of the gun manufacturers - opioid drugs are no longer under control of the drug companies," she said. "The concern then is that the connection may be too remote or that the various state courts may decide that their respective statutes don't cover the theories that the state and county attorneys are putting forward."

The remaining defendants in Oklahoma's opioid case argue that the scope of that state's public nuisance law "was intended to resolve disputes over property and public spaces, not product-liability disputes," Burch said. 

"As the North Dakota decision suggests, public nuisance theories aren't a slam dunk," she said. 

"The laws differ by state, and Oklahoma's statute has been interpreted differently from North Dakota's. States' laws typically conceive of public nuisances as something that interferes with indivisible resources shared by the public at large - air, water, or roads for example."

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