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Defense: Oklahoma threatening expanded public nuisance theory in this week's high-profile opioid case

By Karen Kidd | May 28, 2019


NORMAN, Okla. (Legal Newsline) – As the opioid crisis spotlight turns to Norman, Oklahoma, where the state's high profile case against drug companies is expected to get underway tomorrow, defendants in that case are questioning the state's public nuisance theory that has failed dramatically elsewhere.

Oklahoma's attempt to impose "extraordinary unwarranted liability" on defendants based on "a radical expansion of public nuisance law" would threaten "all manner of business within the state," Janssen Pharmaceutical Companies and Johnson & Johnson said in their redacted brief filed late last week.

"The State’s boundless claim would trample the statutory definition of 'abatement,' as well as the constitutionally guaranteed rights to free speech, to petition the government, and to due process," the brief said. "And the State’s claim would gut the requirement of causation - it simply ignores multiple acknowledged major contributors to the state's opioid abuse epidemic like diversion of lawful prescriptions, unlawful pill mills, and the enormous influx of illegal opioids and other dangerous drugs."

The brief was filed in its entirety just before the long Memorial Day weekend and prior to beginning of trial before a judge - not a jury - in Norman. The outcome in Norman likely will shape negotiations and court outcomes in about 1,500 opioid lawsuits bought by state, local and tribal governments that claim opioid producers are responsible for the nation's opioid crisis.


AG Hunter  

Presiding judge in this week's bench trial is expected to be Cleveland County District Judge Thad Balkman, a former Republican state representative, attorney and consultant appointed to the bench in 2013 by then Gov. Mary Fallin in 2013 before he was elected to the seat the following year. Balkman has said he will allow cameras in the courtroom during the high profile case, which is rare in Oklahoma.

A reported 45 media organizations, including CNN, the Washington Post and the Guardian, have been credentialed to cover this week's trial.

Of 13 drug companies named as defendants in Oklahoma's initial lawsuit, only Janssen Pharmaceutical Companies, Johnson & Johnson, and subsidiaries are left standing in this week's trial, pretrial settlements having taken out the rest, including Teva Pharmaceuticals which reportedly settled for $85 million on the eve of trial.

Oklahoma goes into this week's case represented by three outside law firms, contracted by Attorney General Mike Hunter, which can expect to take in up to a quarter of any award handed down. Those lawfirms took in almost $60 million after negotiating Oklahoma's $270 million settlement with OxyContin-maker Purdue Pharma and in March.

While Oklahoma was not the first state to file suit against Purdue, claiming the opioid maker essentially caused the nation's trouble with prescription pain killers, the state will this week become the first to actually go to trial - assuming no last-minute settlement or other court procedure intervenes.

The road to Norman has not been easy for plaintiffs. Earlier this year in Connecticut, where Purdue Pharma is based, a superior court judge dismissed lawsuits against the company by more than 20 municipalities, saying the local governments lacked standing. The judge in that case also said that allowing those cases to move forward would have lead to "junk justice."

Earlier this month, a North Dakota judge tossed that state's attorney general's claims against Purdue, saying the opioid dealer cannot control how its customers use their drugs and that North Dakota oversimplified the problem. The state's attorney general has said he will appeal that ruling.

While it's not entirely clear what bearing the North Dakota dismissal will have on this week's case in Norman, Oklahoma's case is based in part on public nuisance laws in much the same way as the case in North Dakota.

Observers also are noting similarities between opioid litigation and states' lawsuits against energy producers over climate change that also were based in part on public nuisance theories, in which state attorneys general and other counsel have run into problems using public nuisance laws. Last summer, Rhode Island sued ExxonMobil, BP, Shell and several other oil and gas producers over climate change, despite dismissal of a California case that tried to use public nuisance theory.

The misuse of public nuisance theory in opioid litigation could lead to the same failures experienced in climate change, legal experts have said. In an amicus brief filed earlier this month in the U.S. Ninth Circuit Court of appeals case Oakland et al v BP et al, 17 states warned courts against public nuisance theory.

Courts should not "use public nuisance theories to confound state and federal political branches' legislative and administrative processes" and "should not be in the business of establishing emissions policy (or, as is more likely, multiple conflicting emissions policies) on a piecemeal, ad hoc, case-by-case basis under the aegis of common law," the 17 states' amicus brief said.

Meanwhile in Norman, defendants intend to point out this week that Oklahoma's claim "goes miles beyond what Oklahoma public nuisance law permits," the brief filed in the case said.

"By staking its case on the marketing and sale of highly regulated prescription medications, the state flouts a century of Oklahoma case law expressly confining nuisance actions to conduct or injuries involving property use. And in asking for a cash recovery to address injuries it blames on the alleged nuisance, the state contravenes the plain text of Oklahoma's nuisance statute, which allows the State to abate only conduct - not the harms that allegedly result from conduct."

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Johnson & Johnson Purdue Pharma L.P Teva Pharmaceuticals U.S. Court of Appeals for the Ninth Circuit

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