An Oklahoma Opioid Stickup
By The Editorial Board
The ruling Monday by an Oklahoma judge that Johnson & Johnson must pay $572 million for selling opioids will be cheered by everyone who wants a scapegoat for the scourge of addiction. But the ruling could have far larger, and more dangerous, consequences by opening a vast new arena for product-liability suits.
More than 2,000 states and municipalities have sued opioid makers and distributors in federal litigation in Ohio. Another 250 or so have filed lawsuits in state courts where they hope local judges and juries will provide a more sympathetic audience. Most like Oklahoma GOP Attorney General Mike Hunter have been aided by private plaintiff attorneys.
Purdue Pharma, the OxyContin maker, this spring agreed to settle litigation with Oklahoma for $270 million, which included $200 million for a new National Center for Addiction Studies and Treatment at Oklahoma State University. Mr. Hunter’s son is employed by OSU’s Center for Health Sciences, where the new center will be housed.
Mr. Hunter has since focused on his $17 billion claim that Johnson & Johnson “abate” the alleged public nuisance caused by opioid addiction. Public-nuisance torts usually involve damage to property, and the remedy is enjoin or correct nuisances. But state AGs and the trial bar have been stretching public-nuisance law beyond its intended purpose. New York City and Oakland, California, have tried to use public-nuisance law to sue oil companies for damages they claim they will incur in the future from climate change.
Oklahoma’s opioid shakedown is equally dubious. J&J’s opioids, which include a fentanyl patch and crush-resistant pill, constitute less than 1% of Oklahoma’s prescription opioid market. The Food and Drug Administration approved the drugs and their black-box warnings, and they’re still legal. Patients may only obtain the drugs with prescriptions through government-licensed pharmacies.
Like most of the opioid plaintiffs, Mr. Hunter can’t draw a clear line between doctors who supposedly relied on the opioid companies’ alleged misrepresentations and the injuries suffered by victims. He doesn’t even attempt to specify the particular doctors, prescriptions, pharmacists or victims involved in the chain of addiction.
But public-nuisance law is more elastic than product-liability claims because it doesn’t require evidence of direct causation. To be liable, a business must be “unlawfully doing an act, or omitting to perform a duty.”
This is the general language the plaintiffs lawyers are driving through. According to state Judge Thad Balkman, J&J was acting “unlawfully” by issuing “misleading marketing” that was aimed at “influencing doctors” and a “wide range of governmental agencies” at “‘optimizing the benefits of prescription opioids for pain management [and] minimizing their risks,’ including the risk of addiction, abuse and diversion.” Yet while opioid pills were often overprescribed, J&Js products include patches that aren’t passed out by pill-mill pharmacies.
Judge Balkman also stretches the traditional public-nuisance limitation with respect to property damage by claiming that J&J is liable because its sales reps were trained in their Oklahoma homes, used company cars and sent messages to homes of thousands of Oklahomans via computers. By this standard, cell manufacturers could be liable for damages caused by distracted drivers.
The state’s $572 million “abatement” claim is brimming with pork to fund government agencies, new opioid treatment centers and licensure boards such as the Board of Dentistry and Veterinary Board. Patients won’t receive much benefit, but the plaintiff attorneys who helped Mr. Hunter will be winners, having already raked in $60 million from the Purdue settlement.
The opioid addiction problem is varied and complex, and these days it is largely a problem of illegal fentanyl and meth. It won’t be eased by bankrupting America’s pharmaceutical companies. Armed with this ruling, Mr. Hunter will pressure J&J to settle. But J&J says it will appeal, perhaps because it can see the risk this ruling poses to any law-abiding business.