Opioids

The Oklahoma Ruling Against Johnson & Johnson Hinges on a Sweeping Definition of 'Public Nuisance'

Can legal sales of prescription opioids constitute a nuisance? Two decisions, based on nearly identical statutes, reach diametrically opposed conclusions.

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Yesterday's ruling against Johnson & Johnson in Oklahoma, which marks the first time a court has held a pharmaceutical company liable for the "opioid crisis," hinges on a broad definition of "public nuisance" that may not stand up on appeal. It contrasts sharply with a decision last May by a North Dakota judge who dismissed a similar lawsuit against Purdue Pharma that was partly based on a nearly identical statute.

Cleveland County District Court Judge Thad Balkman ruled that Johnson & Johnson should pay $572 million to "abate" a "public nuisance" the company created in Oklahoma by minimizing the hazards and overselling the benefits of prescription opioids. As relevant here, the statute on which Balkman relied says a public nuisance "consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others" or "in any way renders other persons insecure in life, or in the use of property."

Although the prototypical public nuisance involves using your property in a way that negatively affects your neighbors, Balkman argues that "there is nothing in this text that suggests an actionable nuisance requires the use of or a connection to real or personal property." Alternatively, he says, "in the event Oklahoma's nuisance law does require the use of property, the State has sufficiently shown that Defendants pervasively, systematically and substantially used real and personal property, private and public, as well as the public roads, buildings and land of the State of Oklahoma, to create this nuisance."

In other words, Johnson & Johnson's marketing practices required various uses of property in Oklahoma, so the bad consequences ascribed to them can reasonably be viewed as a public nuisance. The company's representatives traveled on "public roads" when they visited doctors, for example, so if they misled those doctors about the dangers of prescription opioids during those visits, that satisfies any requirement that a public nuisance involve a harmful use of property. Yet this understanding of public nuisances is broad enough to cover all manner of torts that are usually conceived as qualitatively different.

South Central Judicial District Judge James Hill noted that problem when he dismissed North Dakota's lawsuit against Purdue Pharma last May. One of the claims against the company involved a public nuisance statute very similar to Oklahoma's. Hill noted that "North Dakota courts have not extended the nuisance statute to cases involving the sale of goods." He cited a 1993 case in which the Tioga Public School District #15 of Williams County, North Dakota, argued that the sale of acoustical plaster containing asbestos qualified as a public nuisance.

The U.S. Court of Appeals for the 8th Circuit, which handled the case because it involved an out-of-state defendant, observed that "North Dakota cases applying the state's nuisance statute all appear to arise in the classic context of a landowner or other person in control of property conducting an activity on his land in such a manner as to interfere with the property rights of a neighbor." The 8th Circuit worried about the consequences of venturing beyond that "classic context":

To interpret the nuisance statute in the manner espoused by Tioga would in effect totally rewrite North Dakota tort law. Under Tioga's theory, any injury suffered in North Dakota would give rise to a cause of action under section 43-02-01 regardless of the defendant's degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.

Hill said he "agrees with the reasoning of the Eighth Circuit in Tioga." As in that case, he said, the state in its lawsuit against Purdue was "clearly seeking to extend the application of the nuisance statute to a situation where one party has sold to another a product that later is alleged to constitute a nuisance." Hill added:

The reality is that Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to consumers, i.e. after it enters the market. Purdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products, regardless of any warning or instruction Purdue may give.

Judging from the cases cited by Judge Balkman, Oklahoma courts have not read that state's nuisance law to cover situations like this either—until now. Announcing its plans to appeal Balkman's decision, Johnson & Johnson argues that it "disregards 100 years of precedent in public nuisance law, which traditionally has been applied to resolve property disputes, not lawsuits involving the sale of goods."

In addition to his debatable definition of "public nuisance," Balkman's ruling relied on several misconceptions about prescription opioids, which will be the subject of my column tomorrow.

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  1. this is actually horrible.

  2. Good thing people aren’t responsible for their own choices anymore.

  3. Opiates are addictive?

    Who knew?

    1. They aren’t addictive.

      I have taken prescription opioids numerous times in my life and never never been addicted to them.

  4. Look at that corporation sashaying around with all that money, you know they were just asking for it. If you didn’t want government taking your money, you should have covered it up better, you dirty slut.

    1. Yeah, I wish I had that kind of money, too, but since I don’t, I can at least rejoice to see those shameless hussies get their comeuppance.

  5. Which side is really swinging its Johnson around in this case?

  6. We’re catching up to the EU in finding new sources of revenue in fines on big corporations which aren’t paying their fair share. $500M / 2 is an average (so far) of $250M per state, times 50 is $12.5B, right up there with a couple of $5B fines against Google and Facebook.

  7. One critically important detail that is missing: Name the prescription opioid from Janssen that was a public nuisance. This is notably not included in this article. Why?

    Was it Ultram? If so, there are grounds for reversal, completely unrelated to public nuisance.

    1. Duragesic (fentanyl) patches.

      The suit is crap IMO, but J&J’s marketing of those patches was, at times, terribly irresponsible (e.g advocating their use for acute post surgical pain.)

  8. “Yesterday’s ruling against Johnson & Johnson in Oklahoma, which marks the first time a court has held a pharmaceutical company liable for the “opioid crisis,” hinges on a broad definition of “public nuisance” that may not stand up on appeal.”

    We can all certainly hope so.
    And also hope that idiot judge ends up suffering some excruciating pain and finds J&J will not provide pain meds for him

  9. First on list: Sue firearms makers for “creating a public nuisance.”

    Next on list: Sue pharmaceuticals for “creating a public nuisance.”

    Somewhere down the list: Sue farmers for “creating a public nuisance.” It follows, logically, that since food makes people fat….

    1. Meh. Agricultural margins are slim. Fossil fuels, however . . .

      1. Fossil fuels make people thin because they’re bringing about the Zombie Apocalypse.

    2. Sue the NYT for creating a public nuisance!

    3. Is there a greater public nuisance than the US government??

  10. One would be safe assuming this judge is going to be slapped hard on appeal?

    1. An actual smack across the head when a decision gets reversed might improve the court system.

  11. “Public Nuisance” is a rather vague legal term.
    Does that include people who don’t use their turn signal?

  12. I, for one, applaud this decision, as we are way too short on factors driving up the costs of pharmaceuticals in this country.

  13. shame people use law for shakedown street instead of good.

    1. Nothing’s shaking on Shakedown Street.

  14. with every ruling like this, more people lose faith in our courts

  15. If exaggerating the benefits of opioids is worth $572M, how much are we going to charge all of the people who are exaggerating climate change? Racism? “Gun violence?” “Homophobia?”

    1. Trumps crank!

  16. “South Central Judicial District Judge James Hill noted that problem when he dismissed North Dakota’s lawsuit against Purdue Pharma…”

    North Dakota has a South Central?

    I bet South Central North Dakota is where *Fargo* took place.

    1. (Though the municipality of Fargo itself is more southeastern)

  17. If J^2 can be successfully sued for Public Nuisance laws, then how about the fucking Federal Government.

    Until they started meddling, millions of people were managing their opioid intake with the help of their doctors. It was not J^2’s marketing that sent this off the deep end, it was Federal Marketing- they basically told doctors that if they “over” prescribed opioids, they’d be hauled into court. And flash forward 10 years, people who used to go to doctors for their pain meds are instead pulling Fentynol off the streets and overdosing.

    I rarely say “This is an outrage”, but this is definitely an outrage. The government caused this problem. And now they are hell bent on extracting their toll from everybody.

  18. Some things I’d like to declare a “public nuisance”: the NYT, Elizabeth Warren, unsupervised millennials out in public, the IRS, metrosexual beards.

    You can probably add to this list.

  19. Wait till the courts find out what Lantheus has been up to.

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