OKLAHOMA CITY (Legal Newsline) - A coalition of 30 state attorneys general – led by a Republican and a Democrat – has urged the Oklahoma Supreme Court to uphold a $465 million state-court verdict against Johnson & Johnson over its marketing of opioid medications, saying it represents a valid use of public nuisance law.
Rejecting the arguments of a variety of critics including the U.S. Chamber of Commerce, the National Association of Manufacturers and the American Enterprise Institute, the state AGs say the long history of nuisance law shows it can be used to attack all manner of public concerns. Attorneys general have a “unique role” “in seeking relief for their citizens from public harms,” the AGs say. They also have a financial interest.
The AGs entered the case to assert the viability of claims in their own states against opioid manufacturers and distributors, which they are pursuing even as they negotiate multibillion-dollar settlements with the biggest defendants. Last month, momentum grew for a possible $26 billion agreement to settle claims against the distribution chain.
The Nov. 25 filing was signed by Alabama AG Steve Marshall, a Republican, and Washington AG Robert Ferguson, a Democrat. Another eight Republicans supported the brief, including the AGs of Mississippi, Ohio and West Virginia. Oklahoma AG Mike Hunter, also a Republican, pursued the litigation against the opioid industry with the assistance of private law firms that were heavy contributors to his campaign. They have reaped more than $60 million in fees so far and stand to earn much more if the J&J verdict is upheld.
In its appeal to Oklahoma’s high court, J&J said Cleveland County Judge Thad Balkman improperly held the company liable for the state’s entire opioid crisis, including addiction and deaths attributed to illegal narcotics, and stretched public nuisance law far beyond its limitation to acts affecting property. The company warned of “an avalanche of similar lawsuits making end-runs around traditional tort rules” if government lawyers can sue over any product that plausibly can be linked to public harm.
The U.S. Chamber, in an amicus brief supporting J&J, called public nuisance litigation “a new species of super tort.” If the opioid verdict stands, Oklahoma or municipal plaintiffs could sue fast-food restaurants for causing excess rates of obesity or energy companies for causing global warming, the Chamber said, in a “transfer of legislative power to the judiciary.”
The mostly Democratic state AGs dismissed such concerns, saying the majority of state courts to consider the question have perhaps unsurprisingly ruled in favor of public nuisance suits that would benefit state coffers.
The office of state attorney general has roots in England, they said, where lawyers who originally represented the King’s exclusive interests evolved into officials who represented the public at large. Public nuisance law too stems from old England, where suits were brought against noxious fumes, carelessly stored explosives, unwholesome food and unburied corpses.
Historical context shows “public nuisance actions fit the unique need for which they are used: vindicating quasi-sovereign interests in defending the health and safety of the public,” the AGs said.
“A review of Oklahoma case law simply does not support” J&J’s “contention that a public nuisance requires interference with real property,” they continued, citing precedents involving the sale of obscenity, harboring a vicious dog and running wolf hounds.
Johnson & Johnson cited an Oklahoma Supreme Court decision rejecting a public nuisance action over liquor advertisements, in which the court said criminal prosecution was the proper remedy. But the state AGs say Oklahoma’s case went beyond marketing practices to claim the company’s entire manner of operation caused the state’s opioid crisis. The one-year cost of $465 million “is consistent with the court’s traditional equitable powers to fashion a remedy that abates the harm.”
Oklahoma, like other government plaintiffs, avoided presenting any direct evidence that doctors were misled by J&J or testimony from individuals who claimed they became addicted to opioids because of something the company did. Instead, the state hired expert witnesses who testified that industry marketing practices stimulated widespread overprescribing of opioids, which in turn triggered an epidemic of illegal opioid use that accelerated when the Drug Enforcement Administration and state and local authorities started to crack down on prescribing practices.
Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.