Here is the column:
Opioid medications and guns are not ordinarily products linked in the minds of consumers, but their abuse has been at the heart of litigation across the country over whether they constitute forms of “public nuisances.” The Oklahoma Supreme Court last week struck down a $465 million opioid award against Johnson & Johnson based on a legal theory that has previously been tried and failed against guns. Commentators described the Oklahoma decision as “shocking,” but it was predictable. Yet it leaves the matter far from resolved.
Opioid litigation has proceeded like a locomotive in part because of Judge Dan Aaron Polster, a federal jurist in Ohio who has been given control of some 2,000 federal cases from across the country under the multidistrict litigation system. The plaintiffs generally allege that the industry flooded states with prescription opioids and caused an epidemic of addiction. Forty-eight states, including Oklahoma, have brought lawsuits based on the same theory. Judge Polster pushed drug makers to settle before clearly establishing legal liability. He now presides in a trial that could hold pharmacies liable for opioid abuse.
There is no disagreement that the opioid crisis is real. As many as 500,000 people in the U.S. have died from abuse of opioids—both prescription medications and illegal street drugs—since the late 1990s. Johnson & Johnson earned Judge Polster’s ire for defending itself in court rather than accepting liability. The company and the Oklahoma justices are right on the law.
Public nuisance was originally addressed in England by criminal laws against such offenses as obstructing “the King’s highways.” It evolved into a common-law tort to address a broader range of “interests of the community at large—interests that were recognized as rights of the general public entitled to protection,” in the words of the American Law Institute’s Second Restatement of Torts (1965-79).
It has limits, however—most notably the standard statute of limitations, which commonly range from one to four years. By alleging a nuisance that creates a continuing injury, litigants can dispense with the statute of limitations. By proceeding under nuisance, moreover, litigants free themselves from having to prove an actual product defect.
In the opioid litigation, the companies were producing a lawful, nondefective product. The complaint was that they encouraged overprescription and failed to address the addictive danger adequately. That also highlighted the disconnection with product-liability law. Under common law, courts recognize the defense of the “learned intermediary,” namely physicians. Companies gave doctors the underlying medical data on drugs, and doctors decided whether prescribing the drug (or renewing a prescription) was medically warranted. There is no question that doctors have engaged in malpractice in many of these cases of the over-prescription of opioids.
The Oklahoma opioid ruling is consistent with the results of earlier efforts to supplant product liability with nuisance law. Some such cases were raw efforts to use the courts to achieve failed legislative agendas. Take guns. Not only are they lawful; their ownership is protected by the Second Amendment. Faced with resistance in state and federal legislatures, some states sought to declare them a public nuisance.
Those cases collapsed, and rightly so. In Chicago v. Beretta U.S.A. (2004), the Illinois Supreme Court rejected the claim while acknowledging that “the tragic personal consequences of gun violence are inestimable.” The court found that there was no interference with a legal public right. It held that such theories “would permit nuisance liability to be imposed on an endless list of manufacturers, distributors, and retailers of manufactured products.” The opioid claims are similar. Neither product was defective; both worked—all too well in some cases. The claims were based on third parties’ illegal or harmful use of them.
The same result was seen in nuisance claims on lead paint. In State v. Lead Industries Association (2008), the Rhode Island Supreme Court rejected an effort to use nuisance as a substitute for product liability. The court recognized the huge toll from the product while insisting that if it is defective, that should be addressed by product liability: “Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm.”
Where does Oklahoma’s 5-1 ruling leave the opioid litigation and states that are counting on billions in damages? Some companies effectively conceded liability with massive settlements. They saw that as a way to stabilize their market positions, but they may now question that judgment. Purdue Pharma, makers of OxyContin, agreed to pay $4.5 billion and was dissolved. In a separate settlement, the distributors McKesson, Amerisource Bergen and Cardinal Health agreed to pay $20 billion to settle multidistrict litigation involving thousands of plaintiffs. Now pharmacies are in court, though the cases contain nonnuisance allegations, including violations under the federal Controlled Substances Act and state laws, as well as public-nuisance claims.
The latest decision follows a California trial judge’s Nov. 1 rejection of similar liability in November against four drug makers—Johnson & Johnson, Teva Pharmaceutical Industries Ltd. , Endo International PLC and AbbVie Inc. The Oklahoma ruling will likely be cited in other states whose governments are pursuing nuisance-abatement awards.
These courts are likely to be concerned, as Oklahoma’s justices were, that “stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far.” The ruling also raises the possibility that companies will balk at more concessions in the federal litigation.
In Oscar Wilde’s “The Importance of Being Earnest” (1895), the character Jack complains: “I am sick to death of cleverness. . . . The thing has become an absolute public nuisance.” The use of public-nuisance law against lawful products is too clever by half, and the Oklahoma Supreme Court shares Jack’s lament.
Mr. Turley is a law professor at George Washington University.