Oklahoma's Supreme Court tossed out a landmark $465 million opioid ruling

Nov 9, 2021
Originally published on November 10, 2021 8:10 am

The Supreme Court of Oklahoma has tossed out a landmark 2019 ruling in an opioid case against Johnson & Johnson worth $465 million.

The 5-to-1 decision found the company can't be held liable for Oklahoma's opioid crisis.

This ruling comes less than two weeks after a state court judge in California sided with drug companies in another major opioid lawsuit.

The rulings raise questions about the legal strategy used by state and local officials, who argue the drug industry should be held liable for fueling the opioid crisis.

In 2019, state District Judge Thad Balkman ruled in favor of the legal argument that J&J created a "public nuisance" through its marketing of prescription pain pills.

"Those actions compromised the health and safety of thousands of Oklahomans. Specifically, defendants caused an opioid crisis," Balkman said at the time.

Balkman concluded that J&J should pay nearly a half-billion dollars to help Oklahoma remedy the addiction epidemic.

But Tuesday's ruling by the state supreme court concluded the public nuisance law was never intended to address a big public crisis like the opioid epidemic.

"The court allowed public nuisance claims to address discrete, localized problems, not policy problems," the Oklahoma justices ruled.

"Erasing the traditional limits on nuisance liability leaves Oklahoma's statute impermissibly vague."

In a statement sent to NPR, J&J described the Oklahoma ruling as a vindication.

"Today the Oklahoma State Supreme Court ... rejected the misguided and unprecedented expansion of the public nuisance law as a means to regulate the manufacture, marketing, and sale of products, including the Company's prescription opioid medications," the company said.

Oklahoma's attorney general's office, which sued J&J in the case, didn't respond to NPR's request for comment.

Thousands of opioid lawsuits across the country are based on similar arguments that drug firms created a "public nuisance" by making and distributing large quantities of opioids.

If found liable, companies could be on the hook for tens of billions of dollars.

But in a separate ruling earlier this month in California, a state judge ruled that communities suing the drug industry failed to prove their marketing of opioids created a public nuisance.

"[T]here is no evidence supporting a causal connection between the alleged conduct and ... medically inappropriate prescriptions," ruled California Superior Court Judge Peter Wilson.

These latest rulings represent back-to-back victories for the pharmaceutical industry. But Carl Tobias of the University of Richmond, an expert on opioid litigation, said it's too early to conclude that all these cases are likely to fail.

"You don't have a trend when you only have two fairly disparate cases," Tobias said. "It may well turn out to be a valid theory."

There are other state and federal opioid cases underway right now in New York, Ohio and West Virginia. Tobias said the public nuisance argument may still hold up in some courts and jurisdictions.

Many public health experts believe the modern opioid epidemic started in the late 1990s when major drug-makers, distributors and pharmacy chains began selling pain pills aggressively.

Two decades later, local and state governments still face a devastating surge of drug overdoses and deaths. Communities say they desperately need resources to keep people alive.

Officials hope some of that money would come from opioid lawsuits, but decisions like that of the Oklahoma Supreme Court could complicate efforts to win sizable payouts from the drug industry.

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MARY LOUISE KELLY, HOST:

The Oklahoma state Supreme Court has tossed out a landmark ruling today. Johnson & Johnson is no longer on the hook for nearly half a billion dollars for its alleged role in Oklahoma's opioid epidemic. That decision comes less than two weeks after a state court judge in California sided with drug companies in another major opioid lawsuit. Well, these rulings raise questions about the legal strategy used by state and local officials to hold the drug industry accountable for the opioid crisis. And we're going to read some of those questions with NPR addiction correspondent Brian Mann. Hey, Brian.

BRIAN MANN, BYLINE: Hey, Mary Louise.

KELLY: So start in Oklahoma, where the state Supreme Court just overturned what had been seen as this big landmark opioid win. How come?

MANN: Well, this Oklahoma case was a big deal, you know, because it was the first big win for a state government in one of these opioid cases. It meant $465 million to help fund drug treatment and research in the state. And this ruling seemed to validate the legal framework for a lot of these other opioid lawsuits around the country. Here's Judge Thad Balkman speaking in 2019, back when he ruled J&J was liable for part of Oklahoma's opioid crisis.

(SOUNDBITE OF ARCHIVED RECORDING)

THAD BALKMAN: Those actions compromised the health and safety of thousands of Oklahomans. Specifically, defendants caused an opioid crisis.

MANN: But, Mary Louise, at the heart of this case was a legal argument that's known as public nuisance law. And this is the idea that companies can be held liable if they do something that somehow harms the public good. Until now, this legal theory was mostly used to address much smaller problems, maybe like a local contaminated water supply or a company blocking a public road. So J&J appealed, and today the Oklahoma Supreme Court sided with the company. They said public nuisance law was just stretched far too thin in this case. They ruled 5-1 that public nuisance law wasn't meant to address a crisis as big and complex as this opioid epidemic.

KELLY: So total vindication for Johnson & Johnson?

MANN: Well, they say yes. In a statement sent to NPR this afternoon, company officials said Oklahoma's use of public nuisance law in this case was - and I'm quoting here - "misguided and unprecedented." J&J says their marketing of these prescription pain pills was responsible.

KELLY: All right. And let's turn to this other ruling. This was earlier this month in California, where a state judge rejected similar public nuisance claims against Johnson & Johnson and other drug companies. Is there a pattern emerging or too soon to say?

MANN: These rulings clearly do represent big back-to-back wins for the pharmaceutical industry, which, you know, has been hammered by thousands of these public nuisance lawsuits. Using this legal theory to sue companies over opioids has always been seen by legal experts as risky and untested. But Carl Tobias, who's an expert on opioid litigation at the University of Richmond, says he thinks it's still too early to conclude that all these opioid cases that use this public nuisance argument are now likely to fail.

CARL TOBIAS: You don't have a trend when you only have two fairly disparate opinions. We'll see in these other cases. It may well turn out to be a valid theory.

MANN: He thinks this public nuisance argument may still be upheld in some states by some courts. And there are other opioid cases underway right now in New York, Ohio and West Virginia. So, you know, we should find out soon if other courts see this differently and make some of these companies pay.

KELLY: Yeah - well, and pay a lot. We should just remind people for a second that the stakes here are enormous.

MANN: Yeah, potentially tens of billions of dollars. Local and state governments are getting slammed right now by these devastating rates of addiction, soaring overdoses, soaring deaths. And a lot of public health experts say this all did start with decisions made by these companies to sell opioids aggressively. Communities say they now need help to keep people alive, and they hope some of that money will come from these opioid lawsuits. But I have to say, decisions like the one today in Oklahoma could really complicate their efforts to win resources and money from these companies.

KELLY: Thank you, Brian.

MANN: Thank you, Mary Louise.

KELLY: That's NPR addiction correspondent Brian Mann talking about today's ruling by Oklahoma state Supreme Court tossing out an opioid judgment against Johnson & Johnson. Transcript provided by NPR, Copyright NPR.