J&J warns $465M Okla. decision in opioid case could trigger lawsuits over cars, alcohol, etc…
By Daniel Fisher
OKLAHOMA CITY (Legal Newsline) – Johnson & Johnson urged the Oklahoma Supreme Court to reverse a landmark $465 million verdict in the state’s opioid lawsuit, saying no company will be safe from public nuisance claims if the ruling stands.
The decision last year by Cleveland County Judge Thad Balkman held J&J liable for the state’s entire opioid crisis, even though the company’s products represented less than 1% of the Oklahoma opioid market and the state never presented promised evidence that J&J’s marketing deceived physicians into prescribing painkillers inappropriately.
If allowed to stand, the verdict would allow government lawyers to sue virtually any company selling a legal product that is capable of causing harm, including alcohol, automobiles and food, J&J said.
“An avalanche of similar lawsuits making end-runs around traditional tort rules would become viable in Oklahoma,” the company said in a 50-page brief filed late last week. “No commercial activity – no matter how many decades distant, and no matter how uncontroversial at the time – would be safe from Oklahoma’s new public-nuisance regime.”
Johnson & Johnson has the support of a number of organizations including the U.S. Chamber of Commerce, the American Enterprise Institute and the National Association of Manufacturers.
Oklahoma was the first state to go to trial against the opioid industry in a wave of public-nuisance litigation against companies that manufactured and sold prescription narcotics. The state’s Republican Attorney General Mike Hunter hired private lawyers – including major contributors to his political campaign – who stand to earn tens of millions in fees if the verdict is upheld, on top of the $59 million they already got for negotiating $355 million in earlier settlements with Purdue Pharma and Teva. Judge Balkman originally ordered J&J to pay $572 million but reduced the verdict to $465 million after admitting he’d made a $100 million math error.
In its filing with the Oklahoma Supreme Court, J&J asserted multiple legal arguments for overturning the decision, including the judge’s refusal to allow a jury trial to resolve the central fact questions in the case. Oklahoma law also gives defendants the right to jury trial in cases involving money damages, J&J says, but Judge Balkman decided the state’s multibillion-dollar demand was for “abatement” of the opioid crisis.
Private plaintiffs can seek money damages under Oklahoma’s nuisance law, the company said, but not the government. The government can seek injunctive relief, such as a court order prohibiting some activity, but there was no activity for J&J to cease here because it stopped marketing opioids in the state years before, J&J said.
The judge also erred by rejecting more than a century of precedent holding Oklahoma’s public nuisance statute governs the improper use of property, not how products are marketed, J&J said. The judge held J&J liable under the state’s public-nuisance statute for conducting “false, misleading and dangerous marketing campaigns,” that involved property because sales representatives worked out of their homes, traveled on state roads and visited doctors’ offices.
The state Supreme Court rejected an earlier attempt to cite nuisance law against illegal liquor advertising, however, holding in a 1909 decision that it would be “tantamount to holding that every crime was a nuisance.” The Oklahoma Supreme Court has cited that decision repeatedly since, and the legislature has reenacted the nuisance law without changing it to add the interpretation the state AG pressed against J&J, the company says.
“This radical reimagination of Oklahoma law cannot stand,” J&J said.
The judge’s interpretation also leaves public nuisance law “hopelessly vague” and potentially unconstitutional because companies would have no way of knowing in advance whether it could be applied against them for otherwise legal activities, J&J said.
Finally, J&J said the state failed to present any evidence it caused doctors to prescribe opioids improperly, leaving the case devoid of the central requirement in any lawsuit: causation. The state’s private lawyers relied on experts like Dr. Andrew Kolodny, who said the company’s marketing materials and contributions to outside pain groups stimulated excessive opioid prescriptions. But despite early promises, Oklahoma didn’t put any doctors on the stand to describe how the company’s marketing misled them into overprescribing.
“No court would allow an individual patient to recover damages with vague testimony that a pharmaceutical company’s `influence’ affected prescribing trends,” the company said.
Oklahoma has vowed to appeal Judge Balkman’s decision as well, seeking more than the one-year “abatement” the judge approved. In the meantime, the states are working on a global settlement that might make AG Hunter’s victory in this case moot.