Too Much Rope, Too Much Hope? The Oklahoma Case Against Johnson & Johnson Might Not Stand

Below is my column in USA Today on the recent massive damage award in the opioid case in Oklahoma. I remain quite skeptical about the underlying theory of liability as well as other elements in the case.

Here is the column:

The ruling against Johnson & Johnson this week in Oklahoma in the opioid litigation has been heralded as the beginning of the end for pharmaceutical companies in their effort to fend off billions of dollars in damages sought by states, cities and individuals across the country. Indeed, Oklahoma Attorney Mike Hunter declared the $572 million ruling as a roadmap for other states, stating, “We did it in Oklahoma. You can do it elsewhere.”

The ruling against Johnson & Johnson this week in Oklahoma in the opioid litigation has been heralded as the beginning of the end for pharmaceutical companies in their effort to fend off billions of dollars in damages sought by states, cities and individuals across the country. Indeed, Oklahoma Attorney Mike Hunter declared the $572 million ruling as a roadmap for other states, stating, “We did it in Oklahoma. You can do it elsewhere.”

Oklahoma has long been proud of being a place, to quote the musical where there’s, “Plenty of room to swing a rope! Plenty of heart and plenty of hope!” However, this may be a case where Cleveland County Judge Thad Balkman gave a tad too much rope and far too much hope for litigants.

There is no question that the opioid crisis is staggering in its size and impact. Every day, more than 130 people in the United States die after overdosing on opioids and the cost of such abuse is estimated as $78.5 billion a year. In 2017, over 47,000 people died of opioid overdoses. As a result, municipal, county, state and tribal governments have filed more than 2,000 lawsuits against manufacturers, distributors and retailers of the prescription painkillers. 

Oklahoma has long been proud of being a place, to quote the musical where there’s, “Plenty of room to swing a rope! Plenty of heart and plenty of hope!” However, this may be a case where Cleveland County Judge Thad Balkman gave a tad too much rope and far too much hope for litigants.

There is no question that the opioid crisis is staggering in its size and impact. Every day, more than 130 people in the United States die after overdosing on opioids and the cost of such abuse is estimated as $78.5 billion a year. In 2017, over 47,000 people died of opioid overdoses. As a result, municipal, county, state and tribal governments have filed more than 2,000 lawsuits against manufacturers, distributors and retailers of the prescription painkillers. 

The problem in the opioid litigation has is not a lack of real injuries but the lack of a viable legal theory of recovery. Lawyers have been exploring a variety of claims from false advertising to warranties to misrepresentation to consumer fraud. Balkman’s ruling relied on one of the least compelling claims: common law “public” nuisance. Not only did that theory generate only a fraction of the damages sought by Oklahoma ($17.5 billion originally), but the opinion was far stronger in describing the problem than the legal solution.

Public nuisance is defined as an unreasonable interference with a “right common to the general public.” This is generally a reference to resources available to the public like air, water or public rights of way. Courts have resisted the expansion of nuisance to address various social ills for good reason. 

Of course, few would disagree with Balkman that, “The opioid crisis is an imminent danger and menace to all of us.” However, appellate courts are likely to view the use of nuisance in this case to present its own legal risks. It would supplant our elaborate system of product liability claims. This system tests defects ranging from manufacturing to design to warning defects. The rules have been honed through decades of decisions. Nuisance is not designed for the same purpose and could be used as a substitute for legislation by courts. 

There are other, more reasonable means, by which to litigate these cases

Nuisance has become a type of challenge of last resort for advocates who have failed to prevail in legislatures or other legal challenges. It was previously used as a claim of last resort by parties challenging everything from handguns in Illinois to lead paint in Rhode Island. While those cases were successful on the trial levels, they failed on appeal because they pushed this common law doctrine far beyond its breaking point. A similar theory used against oil companies for climate change also failed last year.

The reason Oklahoma turned to nuisance is that it did not have many good options. Opioids are not a defective product. They relieve pain. Like guns, the problem is that the product worked all too well. The problem is in the prescription but not the design of the drugs. The United States represents only 5% of the world’s population, and yet, it consumes approximately 80% of the global opioid supply. That is because doctors prescribe opioids at a much higher rate in this country. The companies themselves do not prescribe drugs. That role — and its abuse — rests in large part with the doctors. Doctors are now under closer scrutiny in their issuing such prescriptions, and the number of overdose deaths from prescription painkillers is falling according to the Centers for Disease Control and Prevention. More overdoses are caused by methamphetamine and other stimulants such as, cocaine and heroin or the pain reliever fentanyl

This does not mean that there are not potentially viable claims, but nuisance is one of the weakest. Misrepresentation and consumer fraud could be promising avenues for litigation. Moreover, there may still be a global settlement of this and all such issues. Nuisance was also raised against tobacco companies but never tested fully in court. Instead, tobacco companies decided it was better to reach a multi-state settlement. Those companies found that the settlement actually may have resulted in their making money as stock rose with the conclusion of litigation and the industry was able to limit liability while moving into new areas like smokeless products

Pharmaceutical companies may have reached that same conclusion. This week, OxyContin maker Purdue Pharma offered to settle more than 2,000 lawsuits for $10 billion to $12 billion. The company has reportedly made more than $35 billion from OxyContin with continuing $3 billion in annual sales largely from that product. Some $4 billion of that money would be in actual drugs given to cities, counties and states — a curious twist on litigation opposing the flooding of society with these drugs. The company would then declare Chapter 11 bankruptcy and restructure itself into a “public benefit trust” for 10 years. That would put it past this period of exposure and potentially close the books for the company. 

Until then, however, it would be mistake to view the Oklahoma case as the “litmus test” for opioid cases. Whether it is lead paint or guns or climate change, public nuisance claims tend to make for better trial than appellate cases. If relief is to be secured for victims, it is more likely to be found in a settlement or less novel theories of recovery. 

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

55 thoughts on “Too Much Rope, Too Much Hope? The Oklahoma Case Against Johnson & Johnson Might Not Stand”

Leave a Reply