An Opioid Lawsuit Smackdown – The Oklahoma Supreme Court shreds abuse of the ‘public nuisance’ tort.
Good timing. On the same day we told you about the abuse of “public nuisance” theory in opioid lawsuits, the Oklahoma Supreme Court tossed a $465 million judgment against Johnson & Johnson for allegedly creating a nuisance by manufacturing prescription opioids. Congratulations to J&J, a rare corporation that had the courage to fight back against this abusive litigation.
Former GOP Attorney General Mike Hunter, aided by campaign donors in the plaintiffs bar, sued J&J as well as Purdue Pharma and Teva Pharmaceuticals in 2017. The state demanded that the companies cough up tens of billions of dollars to “abate” the alleged public nuisance created by making and selling opioids.
Purdue and Teva settled for a combined $355 million. Nearly $200 million of the Purdue settlement went to the Oklahoma State University Center for Health Sciences, which curiously hired Mr. Hunter’s son as a director of compliance not long before the settlement was announced. J&J was later criticized by some on Wall Street for not rolling over after state trial Judge Thad Balkman slapped it with a $465 million judgment.
Now J&J has been vindicated. Tuesday’s ruling by Oklahoma’s High Court is especially notable because it repudiates the abuse of “public nuisance” liability, which plaintiffs attorneys are employing around the country to shake down gun makers, oil and gas producers and other businesses progressives hate.
As the opinion for the 5-1 majority explains, public nuisance law originated in the 12th century as a criminal remedy to protect and preserve the rights and property shared by the public. It evolved into a common law tort that “covered conduct, performed in a location within the actor’s control, which harmed those common rights of the general public.”
For instance, an oil company could be sued for a spill that damages waterways. But the mere act of making or selling legal products “rarely cause a violation of a public right,” the majority writes, adding that manufacturers don’t have control of products once sold.
Under the trial court’s expansion of public-nuisance liability, businesses would “have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products, i.e., will a sugar manufacturer or the fast food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution.”
The Justices stressed that addressing social problems like opioid addiction is the job of the legislative and executive branches, not the courts. That’s a useful reminder to judges who are tempted to loot companies under the trial bar’s ever-expanding theories of liability.