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'It keeps changing': Oklahoma's opioid strategy is a 700-year-old English law that used to regulate wandering sheep

By Daniel Fisher | Jun 13, 2019


Cleveland County Courthouse  

NORMAN, Okla. (Legal Newsline) - The opioid trial now underway in a county courthouse in Oklahoma offers the first look at a legal strategy that could result in tens of billions of dollars in liability against the manufacturers and distributors of addictive narcotic painkillers in similar lawsuits nationwide. 

The basis of that strategy – public nuisance law -- developed in another type of county court in England more than 700 years ago, when the local sheriff was in charge of resolving disputes over blocked roadways and wandering sheep. Back then, the sheriff decided what a "public nuisance" was and who was responsible for cleaning it up. 

Now in Oklahoma, state Attorney General Mike Hunter claims Johnson & Johnson created a modern-day public nuisance by improperly promoting its opioid drugs, including a fentanyl patch and long-acting opioid pills. Like a wayward herd of sheep careening through the streets and digging up the town square, Oklahoma says, J&J’s marketing created a huge, expensive mess that it now needs to clean up.

“The evidence will show that justice for Oklahomans means requiring these defendants to clean up the terrible, tragic mess they have left us with in this state, whatever the cost,” said Hunter in his opening statement on May 28.

Does the analogy fit? Much like a sheriff in medieval England, Cleveland County District Judge Thad Balkman will decide, at the end of a trial expected to last another month. But the case the State of Oklahoma outlined in its opening statement and has presented so far strays far from traditional concepts of public nuisance law, which until the early 1970s almost exclusively involved claims involving damage to public property or interference with public roads and waterways. 

In this case, Oklahoma claims J&J’s marketing of opioids was the public nuisance, although it is trying to blend that with the larger idea that the state’s opioid crisis is also a public nuisance. By joining the two together, the State hopes to minimize arguments about causation, an essential step toward proving any other type of tort lawsuit.  Municipal plaintiffs involved in multidistrict litigation in federal court in Ohio are pressing largely identical arguments, backed by similar evidence.

The State’s evidence includes witnesses describing the effects of opioid addiction, including a father who fought back tears as he described his son’s fatal overdose, and experts who opine that J&J convinced doctors to prescribe too many opioids. 

But the state isn’t expected to present evidence of a single physician who relied on J&J’s marketing materials to improperly prescribe opioids, nor will it name a single patient who received them wrongly. 

“It’s a show trial,” said Richard C. Ausness, a professor at the University of Kentucky College of Law who has written extensively on public nuisance law. “It gives them an opportunity to bring out all the dirt against a drug company.”

Oklahoma says the attorney general has ample authority to go after J&J under the state’s nuisance statute, which prohibits any behavior that “annoys, injures or endangers the comfort, repose, health, or safety of others,” “offends decency,” or in any way “renders other persons insecure in life.” Hunter dismissed as a “circular argument” J&J’s complaint that Oklahoma nuisance law had never been used for non-property offenses. 

“Over a century ago legislators gave the Oklahoma attorney general authority to take action to abate public nuisances that affect the public,” he said in his opening statement. 

A judge in North Dakota ruled otherwise, however, finding that state’s virtually identical public nuisance statute didn’t apply to sales of commercial goods. 

“The idea is you’re not responsible for what happens after it leaves your control,” Ausness said. 

“If the statute is interpreted to limit the remedy to abatement, the defendant has to have the power to abate the nuisance, which in turn implies control.”

A prominent scholarly examination of the evolution of nuisance law suggests Ausness and the North Dakota judge are right – or were, depending on how nuisance law might change in the wake of the opioid litigation. In “Is Public Nuisance a Tort?” Professor Thomas W. Merrill of Columbia Law School wrote that efforts by environmentalists to retool nuisance law as a weapon against pollution and other social problems in the early 1970s had largely failed -- until state attorneys general rediscovered nuisance in the late 1990s with the help of private lawyers. 

Most of the tobacco lawsuits in the 1990s claimed the marketing of cigarettes was a public nuisance, for example, although the only court to decide the matter rejected that theory in a 1997 decision. A federal judge in New York rejected similar claims that the gasoline additive MTBE was a public nuisance, but in both cases lawyers negotiated lucrative settlements that showered them with fees. 

Gun lawsuits may have been headed the same way until Congress passed a statute eliminating most liability for gun manufacturers over crimes committed with their products. Federal courts in New York and California also rejected lawsuits accusing gasoline manufacturers of causing the “public nuisance” of global warming.

The biggest success for public nuisance advocates so far was in California, where a state appeals court in California upheld a judgment requiring several manufacturers to “abate” lead paint in thousands of aging buildings because they advertised the product before World War II. The California and U.S. supreme courts refused to hear further appeals of that decision.

The main reason these cases have gained any traction may be a subtle change in the definition of “public nuisance” in the Restatement (Second) of Torts in 1972. Restatements are guidebooks to the common law for judges and attorneys published by the American Law Institute. After several fierce debates, ALI members supported broadening public nuisance law to address environmental damage, Merrill wrote, even though there was no case law to support the change. 

For centuries, Merrill wrote, public nuisance was a crime, not a tort, requiring the violation of a specific law. But the ALI Reporter in charge of public nuisance law, John C. Wade, added the term “unreasonable interference” to its definition, likening it to a tort and possibly opening the doors to sweeping litigation like the opioid lawsuits of today. 

“With one deft stroke, Wade transformed public nuisance from a form of conduct defined by criminal law into something that sounded like the quintessential tort – albeit a tort having a virtually limitless expanse,” Merrill wrote.

Courts mostly resisted the new definition and critics, including Merrill, say it should be scrapped. The main problem, they say, is if a public nuisance lawsuit is truly a public action, then courts should be able to cite the violation of specific law passed by legislators when they order the nuisance to be abated. Otherwise judges are left deciding important questions of public policy, including which nuisances to abate and who pays.

“In short, our commitment to popular sovereignty requires that the legislature be given the first word on determining what rights are common to the public as a whole and who should enforce them, not the last word,” Merrill wrote.

Johnson & Johnson has objected to most aspects of the Oklahoma lawsuit, including the state’s insistence it isn’t seeking money damages even as it sues for $17 billion to fund programs to reduce opioid-related health and crime problems. Judge Balkman agreed with the State and rejected J&J’s demand for a jury trial, as is required in lawsuits where money damages are awarded. 

The judge has also overruled J&J’s many objections about evidence unrelated to its own conduct, including internal documents from Purdue Pharma and Teva, who were co-defendants until they settled with the state. Oklahoma has tried to link J&J to the other companies through its onetime ownership of Noramco, a company that supplied wholesale opium it produced from poppies grown in Tasmania. 

J&J argues there is no legal basis for holding a supplier liable for injuries caused by products manufactured by another company, especially in the context of a lawsuit that is ostensibly over the public nuisance of a marketing campaign. 

The State has presented expert witnesses who say J&J’s marketing was intended to increase sales of all opioids so its Noramco unit could benefit. Noramco, which J&J sold in 2016, had earnings of less than $100 million a year, compared with $15 billion in net income for the company as a whole. 

Perhaps the strongest objection J&J has made is that Oklahoma is proceeding without evidence that is normally vital when a plaintiff claims a product caused injury: reliance. The State says J&J’s marketing caused the opioid crisis, but aside from experts who link marketing to rising sales of all opioids, including illegal ones, 

Oklahoma is unlikely to name any doctors who relied upon that marketing to make their prescribing decisions.

A state expert, marketing executive Renzi Stone, came close when he described how J&J and other and others had successfully stimulated prescription opioid sales by downplaying the risks of addiction and death. On cross-examination, J&J attorney Larry Ottoway asked Stone if he knew those risks were prominently displayed on the labels doctors are required to read and asked him how he knew doctors had been misled.

“Is it your opinion there are doctors in this state who don’t know as much as you?” Ottaway asked

“I know addiction is complicated,” Stone replied.

So is public nuisance law, apparently. 

“It’s incredibly complicated,” Professor Ausnuss said. “And it keeps changing.”

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Johnson & Johnson Oklahoma Attorney General's Office Purdue Pharma L.P

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