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
Abortion is legal.
Recreational drug/opioid ingestion is not.
That dudn’t make any sense.
Read the 9th Amendment.
As a practicing personal injury lawyer, I think the nuisance theory is a bridge too far. Big Pharma has a lot to answer for and supplying rural pharmacies with opiods in orders of magnitude more than anyone could expect them to sell is grounds enough to make them answer in tort for failing to prevent foreseeable harm to individuals. Assumption of risk and contributory negligence (in those states with that defense like Va) make claims risky business. (Save me before I kill myself, isn’t an argument favored by juries). Unfortunately for the government, the foreseeable harm theory doesn’t fill their coffers or pay their attorneys’ fees.
Nuisance is the being used here by the states’ attorney’s generals as a catch-all tortious cause of action stretching it beyond any semblance of recognition because it can be. All that will be accomplished by this litigious overreach is the appellate courts limiting the recovery of bona fide claimants whose injury this cause of action was intended to remedy.
yeah what he said
9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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While people may be precluded from causing property damage and bodily injury, the people most certainly have a constitutional right to ingest substances.
J&J sold a product approved by the FDA, prescribed by doctors and was a minute % of all such drugs sold in the state. This case was nothing more than a money grab. If they think such drugs are not safe to be prescribed by a doctor it was a failure of the FDA.
As a former clinical data analyst for Big Pharma, I have to say that Oklahoma went after the wrong defendant (albeit the one with the very deepest pockets).
There are firms selling fentanyl who have been outed by employees to FDA for having their detail men (sales reps who go to physicians and convince them to prescribe their companies’ drugs) pressure physicians hard to overprescribe fentanyl, often to those for whom it was entirely the wrong pain medication. I don’t think the Oklahoma case proved J&J’s Janssen subsidiary did that.
Hope this case is overturned on appeal because it’s not just weak, it’s obvious money-grubbing by state governments. Deliberate overprescription of controlled substances is already a crime. It’s a crime a relative few physicians commit. Trying to spread that culpability to one drug manufacturer because it’s the market leader in fentanyl is just wrong. Purdue Fredricks is settling for a much higher amoutn because their marketing strategy for Oxycontin is palpably wrong and probably induced physicians to overprescribe.
Arkansas River is polluted. Thrown away drugs?
We need a topic on this blog to discuss the need for a national computer system to do the following: 1. Take the name, address, date of birth, soc sec number, and fingerprint of every person issued an opioid prescription. 2. With that the name, address, phone, email address, of every so called “doctor” who prescribes any opiioid. 3. The name address, phone, email of every pharmacy in America. 4. When someone shows up at the pharmacy with the prescription the information from the buyer (patient) is put on the website. 5. The pharmacy must confirm that the patient has not bought another batch of pills from any other doctor at any other pharmacy and report same to the central opioid agency. The pharmacy cannot sell drugs to this person if there is a recent activity and the term of the drug use has not run out or will not run out soon.
This way the drug addicts who go to five doctors and five pharmacies for their pills will be prevented from doing so. Doctors who presribe over a certain amount will be investigated. Those who prescribe or sell outside the bounds will be deprived of license to prescribe or sell such drugs.
Elon Musk, “…rolllll another one; just like the other one.”
Substance ingestion is the historical norm of free people. Your psychosis of obsessive/compulsive megalomania is the aberration. Societies throughout history have engaged in recreational and religious substance ingestion. Apaches ingest Peyote as a religious rite as tribes of the Upper Amazon and South America ingest Ayahuasca.
It’s difficult to discern the difference between you, Kim, Stalin, Mao, Hitler and Caligula. We need to make you the dictator-for-life and Supreme Dear Leader. You should recruit the “Liberty2nd Youth” and build the superior race.
Alternatively, we could grasp the right and freedom of each American to make his own decisions, including those of ingestion and dosage. Is the glass half full or half empty? Are Americans half-free or half enslaved? The Constitution provides Americans every conceivable natural and God-given right and freedom per the 9th Amendment including the right to and freedom of ingestion. Congress has no authority to deny any conceivable natural and God-given right and freedom per the 9th Amendment.
Caveat Emptor! It is incumbent upon each and every citizen to be self-reliant, responsible and well-behaved. Man up!
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9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Liberty2nd – that’s a good idea. Although, there needs to be one caveat. Sometimes people are proscribed a larger pain killer for an injury, and don’t finish it. Then they might switch to a lower level pain killer. Any database would have to allow for reasonable adjustments to medications.
Plus, such a database would have to be monitored by physicians, rather than bureaucrats. Or at least the guidelines developed by physicians in concert with addiction specialists.
Reputable pain clinics already do most of that to enforce the contracts they make with patients to prevent drug abuse.and diversion. But pain is a highly individualized symptom. Some cancers can cause considerable pain, far about what most people have ever felt. Physicians need to document why they are prescribing opiates, but they shouldn’t be forced to commit malpractice by depriving patients who need unusual amounts of pain medication of adequate pain relief.
Compare with deaths by automobile.
Gun Deaths – Ban Guns
Drug Deaths – Ban Drugs
Car Deaths – Ban Cars
Boating Deaths – Ban Boats
Airplane Deaths – Ban Airplanes
But whatever you do, don’t ban wars!
https://www.niaaa.nih.gov/alcohol-facts-and-statistics
Alcohol-related deaths appear to far outnumber deaths from prescribed opiods. I haven’t checked to see if there have been any successful lawsuits against manufacturers of alcoholic beverages, but it seems that if the same standards and same legal “reasoning” being applied to these pharmaceutical companies was applied to those who make and sell booze, there would be another deep pockets industry to target.
The “successful lawsuits” you reference are actually failures of and corruption by the Supreme Court.
Congress has no authority to deny any conceivable natural and God-given right and freedom per the 9th Amendment, including substance ingestion.
Congress has no authority to regulate pharmaceuticals or anything other than “…commerce among the several States.”
The “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
“You can’t handle the truth!”
– Colonel Jessup
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The truth is that Americans have the natural and God-given right to and freedom of substance ingestion per the 9th Amendment and recreational substance ingestion has been engaged in by every society in history.
The truth is that Congress has no enumerated power to regulate pharmaceuticals or anything other than “…commerce among the several States.” The Constitution does not preclude substance ingestion and the constitutional right to and freedom of substance ingestion may not be denied by legislation.
How many constitutional rights and freedoms do laws against substance ingestion violate?
Who is the substance ingestion dictator?
Free people make their own decisions about every aspect of their lives and enterprises.
People who may not make their own decisions are under a dictatorship.
The original American thesis was not dictatorship but freedom and self-reliance.
The Constitution provides maximal freedom to individuals while it severely limits and restricts government.
BIG PHARMA DUMPED 76 BILLION PAIN PILLS..
ON AMERICA BETWEEN 2006 – 2012..
RESULTING IN NEARLY 100,000 DEATHS
America’s largest drug companies saturated the country with 76 billion oxycodone and hydrocodone pain pills from 2006 through 2012 as the nation’s deadliest drug epidemic spun out of control, according to previously undisclosed company data released as part of the largest civil action in U.S. history.
The information comes from a database maintained by the Drug Enforcement Administration that tracks the path of every single pain pill sold in the United States — from manufacturers and distributors to pharmacies in every town and city. The data provides an unprecedented look at the surge of legal pain pills that fueled the prescription opioid epidemic, which has resulted in nearly 100,000 deaths from 2006 through 2012.
Just six companies distributed 75 percent of the pills during this period: McKesson Corp., Walgreens, Cardinal Health, AmerisourceBergen, CVS and Walmart, according to an analysis of the database by The Washington Post. Three companies manufactured 88 percent of the opioids: SpecGx, a subsidiary of Mallinckrodt; Actavis Pharma; and Par Pharmaceutical, a subsidiary of Endo Pharmaceuticals.
Purdue Pharma, which the plaintiffs allege sparked the epidemic in the 1990s with its introduction of OxyContin, its version of oxycodone, was ranked fourth among manufacturers with about 3 percent of the market.
The volume of the pills handled by the companies skyrocketed as the epidemic surged, increasing about 51 percent from 8.4 billion in 2006 to 12.6 billion in 2012. By contrast, doses of morphine, a well-known treatment for severe pain, averaged slightly more than 500 million a year during the period.
Those 10 companies along with about a dozen others are now being sued in federal court in Cleveland by nearly 2,000 cities, towns and counties alleging that they conspired to flood the nation with opioids. The companies, in turn, have blamed the epidemic on overprescribing by doctors and pharmacies and on customers who abused the drugs. The companies say they were working to supply the needs of patients with legitimate prescriptions desperate for pain relief.
Edited from: “76 Billion Opioid Pills: Newly Released Federal Data Unmasks The Epidemic”
Washington Post: 7/16/19
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The above article was part of a week long series the Washington Post ran in July. Those articles suggested that Big Pharma over-manufacutured pain pills by ratios that were completely out of proportion to demand. Sadly certain towns in the Kentucky and West Virginia were flooded with opioids.
Late last week news emerged that the Sackler family, owners of Oxycontin maker Purdue Pharma, will kick in $3 billion from the personal fortune to bolster a ‘superfund’ to settle class action suits against Purdue which the family intends to disinvest from. Critics, however, claim the Sacklers could get off easy with most their fortune intact.
No one is responsible except for the people who took the pills.
Jim, why were those pills over-manufactured by such insane quantities? Statistics show that Big Pharma just decided to produce opioids like never before.
Statistics show you are full of caca and reliable sources report you lie due to your abuse of opiates
Oh it’s one of our routine losers with nothing to add to any serious discussion. Just some malcontent wanting to defend opioid abuse because he thinks free-markets should determine.
Nobody thinks Hill is playing with a full deck so just ignore the pest. He is indeed full of sh!t as you wisely observed, old news to us
Anonymous, are you defending opioid abuse?? No wonder you’re anonymous! Yeah, opioids are respectable because they’re used by Trump-supporting Whites.
NB, the age adjusted death rate from unintentional injury fluctuates from year to year but has shown a (very mild) downward trend over 60 years. That from suicide varies within a certain band of values, up one decade and down another. There is no crisis. There is just the human condition in the face of affluenza.
It is inconceivable that the Founders entrusted the American People with self-governance and the right to keep and bear arms but not their natural and God-given right to and freedom of ingestion. The “dictatorship of the proletariat” and moralists holds no valid, separate dominion under the Constitution.
The People are free and accountable.
The government is severely limited and restricted.
Johnson and Johnson is not liable or responsible.
The Supreme Court is guilty.
What if the jury is made up pot people like ones running for president on the democrat side? Then I think J&J has a problem.
This is going to create a very serious problem for patients who legitimately experience pain. Should pharmaceutical companies determine that opioids are a money losing venture, due to lawsuits, they will discontinue making them. Where would that leave cancer patients, surgical patients, car accident victims… The innocent would be punished for the behavior of others.
It is not the fault of the manufacturer if their drugs are over prescribed or abused. How can the pharmaceutical companies control how many prescriptions are written? It’s like suing a knife or duct tape company for a kidnapping.
A better course of action would include tracking pain prescriptions more effectively. Patients have to provide photo ID, and the prescriptions should be attacked to their SSN or legal resident #. (Obviously, this is a problem for illegal immigrants that would require discussion.) In this manner, it would be more difficult for addicts to doctor shop.
There also needs to be a plan of withdrawal whenever an opioid is prescribed. It is not ethical to prescribe a highly addictive drug to a patient, and then forget all about them. Addiction is the inevitable result, and rehabilitation for the non terminally ill must be part of the treatment plan. Other, less addictive substances should of course be tried whenever possible.
One of the inherent problems in opioids is that they over sensitize nerve endings. What would normally be negligible pain is felt exponentially. The patient really is feeling high levels of pain. Plus, withdrawal also registers as extreme pain. Patients can believe that they are still suffering from the original injury, not realizing that it is the drug, itself, causing them to feel pain unless they take ever higher doses.
Opiods are addictive and problematic, but if someone needs serious pan relief, there aren’t many options.
If lawyers want to find someone to blame, there are these parties – the doctors who prescribe opioids and then forget all about their patients without any treatment plan for withdrawal, the doctors who knowingly write scrips to addicts, and the addicts and street dealers themselves. Once someone becomes addicted, there is a true desperation in their quest to get more drugs. Although this is a self inflicted malady, many behaviors are self destructed. Once they are truly caught, they deserve compassion. It must be very difficult to accept help, considering how much pain withdrawal causes.
Karen S
I am already seeing the consequences of the government going after pain meds.
I have an old dog who gets several Tramadol tablets a day. Makes his life easy and he can still walk/play.
Now the vets are terrified of prescribing and attracting regulator experience. They limit prescriptions to 10 tablets at a time.
The vets apologize and have not been able to come up with an acceptable pain medication.
End result, my old dog is in pain every day.
“We are from the government and we are here to help you”.
Yeah, tell Sarge that; bet it makes him feel better.
monumentcolorado – my cancer-ridden, pain-ridden dog got Tramadol like candy. 60 at a swat.
Tramadol’s not impossible to abuse, but very difficult to do so. I take it for cancer and spinal arthritis and have never felt a euphoric “high” from it. Just reasonably good pain relief. Since tramadol is also a selective serotonin/norepinephrine reuptake inhibitor, it also has a mild antidepressant effect, and causes unpleasant agitation and even seizures when taken to excess. It’s the second-least plausible recreational drug out there (the anticonvulsant gabapentin being the least likely drug commonly prescribed for pain to be abused).
monumentcolorado – I’m so sorry to hear that your older dog is having pain. My doctor prescribed Tramadol to my senior dog, who passed away not too long ago. It did not seem to do enough for the pain, but now I’m wondering if he was under prescribing for him. I added CBD oil, made from hemp rather than marijuana, and made especially for dogs. It really seemed to help him, and I’m certain I got more time with him. There was a noticeable improvement in his mobility on it compared to off.
As for the results of restrictions on opioids, we experienced that recently. My husband was accidentally injured by one of our draft horses. They don’t give any pain meds until after the doctor sees you, and he won’t see you until the wound is cleaned. It was not fun, as it was a crush fracture. He clearly had a reason for requiring pain meds, but due to liability, hospitals are being extra cautious. That translates to legitimate patients being in more pain than necessary.
we’re back to the 80s style “war on drugs” regime now on opiods. outside hospice that is. in hospice they put you to sleep, fast
federal prosecutors are lowering the boom, the required practices of doctors have been strongly updated within the past year. people have to make more visits just for medical devices like walkers and apap machine supply refills. typical over-reaction one sees across the decades
I had an employee and also the son of a friend who got hooked. At least one legitimately became addicted after a knee injury. My understanding is these are very hard addictions to escape. In both cases I knew, they went over the edge and lost everything. I lost track and don’t know how they are doing now. It’s no joke. Karen describes the bind this puts on legitimate pain reducing strategies and who should be blamed, It seems to me that docs are the most effective pressure point, though it risks their avoiding the prescription when truly needed.
My understanding is these are very hard addictions to escape.
No, the people that suffer them do not wish to escape them.
DSS – you are half right. Some people do not realize they addicted and therefore do not want to stop. Addiction is both mental and physical. Once you are physically hooked the body craves the substance or activity you are addicted to, so it can physically hurt to stop doing what you were doing. This is why there are rehab centers for people to get clean, The average is considered to be about 28 days of rehab before release. However, recovery is lifelong.
so it can physically hurt to stop doing what you were doing.
See the account of Anita O’Day (among others) about the physical experience of going through withdrawal (which she managed on her own in 1970). Dennis Wholey had a long discussion with an addict of her vintage on his program in 1983. No, he says, the physical symptoms aren’t that challenging and he’d been through them more than once. My mother went through OxyContin withdrawal in 2004 in her own home, no one present. My mother wasn’t a woman with a high threshold for discomfort.
None of that’s definitive, of course. But if you’re curious about the source of my skepticism, that’s it.
DDS – the shoe doesn’t fit all feet the same. When I quit smoking, I was consuming 4 packs a day. I stopped cold turkey after trying various methods to taper off. It was painful and it was exceedingly hard to do. Now, there are no AA meetings to stop smoking, you just have to white knuckle it. It was probably 6 months before I was free and clear of cigarettes.
TIA – withdrawal is supposed to be excruciating. It is my understanding that it’s not that addicts don’t want to get clean, they just feel it is impossible, or are very afraid of that level of pain.
Two people among my extended family became addicted after injuries. One of them had injuries that were very bad, and required over a month of hospitalization. The physical therapy was so painful that when we came to sit with her, we could see her terror when they announced it was time for PT. Nothing they prescribed, short of knocking her out, seemed to help. The extent of her injuries was extensive, so of course she became addicted. She lost everything. That was a real eye opener about how doctors prescribe long term use of highly addictive substances, without any apparent withdrawal action plan in place. Plus, they might not have explained to her that withdrawal feels like terrible pain. The last I heard, she was still struggling. The other one wasn’t trying to get sober anymore.
This is really heartbreaking. We need to find a balance where people get pain relief, yet take steps to stop doctor shopping. Creating a database linked to individual patients can help keep track of overall scrips. That might make doctors feel more at ease that if they prescribe a painkiller, the patient cannot keep going on down the line getting similar scrips, which puts the doctor at a liability.
pain is part of life. people in jail can stay hooked or get clean and they do it both ways, all the time with little fanfare
TIA – withdrawal is supposed to be excruciating. I
I think you’ve been sold a bill of goods.
that’s how people often feel about nicotine. luckily they can vape noncarcinogenically now, but they’re trying to ban that too I’m sure
Among my first, second, and 3d degree relatives, I can name five who quit cold turkey, four of them after 30+ years of smoking. These were heavy smokers.
not every heroin addict ends up in disaster. sometimes like alcoholics they get it together.
most of them are serious losers. i reject the idea that a course of pain medicines is going to turn the average patient into a heroin addict. that’s preposterous. i had my wisdom teeth out as high schooler when I was maximally irresponsible and abusing alcohol and pot regularly like most of my peers, and it didn’t occur to my in the slightest bit to take the pain pills for recreation. i went off the scrip early and didn’t think too much about it.
i quit pot before college like most of my peers too, and in later life as a normal adult I barely had any problems with alcohol and rarely take even a drink now because I’m too cheap to pay for these $14 cocktails. most people are ok
a social problem does not always require a radical solution. most of them are persistent reflections of our flawed and fallen human nature. paid, greed, lust, sloth, envy, and death will always be with us. just learn to live properly and keep trying, is the best you can do.
Freedom not dictatorship.
CAVEAT EMPTOR
Freedom of speech, religion, press, assembly, the right to private property, etc., and every other conceivable natural and God-given right and freedom per the 9th Amendment; the people absolutely enjoy the right and freedom of ingestion, laws and statutes against property damage and bodily injury notwithstanding.
An objective and constitutional Supreme Court would rule Johnson and Johnson not liable or culpable and substance ingestion a manifest right and freedom of the People. The American thesis is freedom and self-reliance. To deny the People their constitutional right and freedom of ingestion is to relieve individuals of personal liability as responsible citizens.
The Constitution provides people maximal freedom (the magnitude of which many people are unable to grasp) while severely limiting and restricting government. Congress and inferior legislative bodies have no power to regulate anything other than trade, exchange or “…commerce among the several States.”
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9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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Article 1, Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
I’m all for big monetary judgements! I want to see some jail time for executives at these companies. Corporations are legal constructs. Humans are the ones who make the decisions. Take away their bonuses and their stock option profits and put them in jail. If this was done, conduct would change.
Add the bill of increased insurance to price of medicine and whose going to factor in TANSTAAFL?. The Congress? Certainly. One side is after complete control and damn the citizens the other is adding costs the same way any business adds costs and in doing so does not forget the COG column. Cost of Government. In the end we arrive at an inviolable trruism. Businesses do not pay taxes. Customers of business pay taxes … all of them. Which turns the income tax system into the sicket tort joke of all. The honest tax if there were such a thing would be called end user consumption tax.
A value-added tax (VAT) on nonessential consumer goods would do several things at once, most good. It would put a brake on compulsive consumption. It would shift the tax burden on those who can afford it most. Clothing, food, medicine housing and medical services ought to be exempt within reason (mink coats and jewelry ought to have a VAT applied to them).
By making it economically painful to waste money, a nonessential consumer goods VAT would also be an added way of making sure those on government assistance spend that money on its intended goal of housing, medical treatment and nutrition for the poor.
Too much hope, great.
how about personal responsibility plus doctor responsibility equals opioid crisis problem. the okie attorney (and the judge) like any theory based on the concept of deep pockets.
If they are using a nuisance theory, than it is unlikely to withstand appeal. I also think the award is an emotional one, you would be hard pressed to figure out how you came up with that amount.
The judiciary are plain awful
Given the amount of citizens and others of all ages that are killed why not add drugs or the misuse of drugs to the weapons of mass destruction list. Last I read the annual amount exceeded the total of the Vietnam War. in terms of US military alone.
That would bring the problem under the terrorism rules and laws with the best deterrents found in the Patriot Act.
Once that is done take a page from or just use the Patriot Act. If iyou don’t know how that works as compared to the Constitutional Judicial system it has two parts.Terrorist Acts and the one added by President Obama supporting terrorist acts. No probable cause or any of that Bill of Rights stuff and what’s left starts with ‘suspicion of,’ From there it gets rough… for the perpetrator.
KISS provides an easier way. If overdosing is the problem require the phsical act same as having a prescription written. Administration of same by competent medica authorities and nothing sent home. Sounds hard? So does digging those 50,000 pus graves a year.
A careful reading of just the first parts of The Constitution call for the citizens and military etc … not so sure about the politicians anymore… to preserve, protect, and defend the Constitution and the Government to do much the same for the Citizens. Is that last part working for you?