OKLAHOMA CITY (Legal Newsline) - The Oklahoma Supreme Court on Tuesday threw out a landmark $465 million public nuisance verdict against Johnson & Johnson over its sale of opioid painkillers, stating in clear terms that public nuisance law can’t be used to sue companies over the sale of legal products.
The decision could resonate through similar litigation against the opioid industry as well as over other products such as fossil fuels, as private lawyers have recruited thousands of government plaintiffs to file public nuisance suits to “abate” harms they say flow from otherwise lawful business practices. Wholesale drug distributors and J&J have already agreed to pay $26 billion to settle opioid claims based partly upon a single federal judge’s decision to allow public nuisance claims to proceed under his interpretation of state public nuisance law.
In a decision written by Justice James Winchester, the court held that Judge Thad Balkman had committed multiple errors when he decided that J&J could be sued for public nuisance and then ordered the company to pay nearly half-a-billion dollars to fund a detailed abatement program designed by state officials. The lawsuit was spearheaded by Oklahoma’s Republican Attorney General, Mike Hunter, who hired campaign contributors to represent the state and oversaw the payment of at least $60 million in fees to them in settlements of related cases.
“Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids,” the court concluded. Applying the law in this way “would create unprincipled liability for product manufacturers; this is why our court has never applied public nuisance law to the manufacturing, marketing and selling of lawful products.”
A California judge dismissed a lawsuit by Los Angeles County and others last week using similar reasoning. Courts in North Dakota and Connecticut also have dismissed opioid public nuisance lawsuits.
Oklahoma claimed J&J should have warned doctors about the dangers of prescribing opioids, the court wrote. But “this classic articulation of tort law duties – to warn of or to make safe – sounds in product-related liability.” Public nuisance and products liability “are two distinct causes of action, each with boundaries that are not intended to overlap," the court went on, citing the Rhode Island Supreme Court’s 2008 decision dismissing litigation over lead paint.
The court also cited an earlier decision by the Illinois Supreme Court rejecting public nuisance lawsuits against gun manufacturers.
The court said making and selling products “rarely cause a violation of a public right,” manufacturers don’t generally have control of a product once its sold, and they could be “perpetually liable” for nuisance if courts held otherwise. The court also dismissed the core claim that J&J interfered with a public right, saying prescription opioids aren’t like pollution in drinking water or the discharge of sewage because they have beneficial uses.
Without control of the product after it’s sold, the court said, the manufacturer can’t be ordered to abate the supposed nuisance. The trial judge also erred by assigning J&J liability for the state’s entire opioid crisis when it only had 3% market share, the opinion says. Finally, J&J “cannot abate the alleged nuisance,” the court ruled.
“The condition, opioid use and addiction, would not cease to exist even if J&J pays the for the state’s abatement plan,” the court ruled. Over a century of rulings, the court said it has never allowed the state “to collect a cash payment” that is “line-item apportioned to address social, health and criminal issues.”
The court said it has allowed public nuisance claims to address discrete, localized problems, not policy problems. The judge’s decision would allow courts “to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems.”
Judge Balkman went too far “by stepping into the shoes of the legislature” by “creating and funding government programs,” the court ruled.
Justice Dana Kuehn concurred, saying Oklahoma nuisance law “is not, and unless the legislature amends it, never will be, a tort.”
Justice James Edmonson dissented, saying that while Judge Balkman had made serious errors and the case should have been remanded for retrial before a jury, the majority unnecessarily ruled out public nuisance lawsuits over products when the most that could be said is the law is silent on the question.