OKLAHOMA CITY (CN) — The Oklahoma Supreme Court on Tuesday reversed a bellwether $465 million verdict against opioid maker Johnson & Johnson, finding the trial judge misinterpreted the state’s public nuisance law.
In a 5-1 ruling, the high court concluded Cleveland County District Judge Thad Balkman erred in extending the law to Johnson & Johnson’s manufacturing, marketing and selling of prescription opioid drugs during a bench trial in 2019.
Oklahoma officials sued the company and competitors Teva Pharmaceutical Industries and Purdue Pharma in 2017 for allegedly pushing the drugs and killing over 4,600 Oklahomans through unintentional overdoses from 2007 to 2017. Teva and Purdue settled the state’s claims before going to trial.
Writing for the majority, Justice James R. Winchester said stopping the opioid crisis is a “laudable goal” but cannot be done by “reshaping” the public nuisance law that has traditionally been used to address “discrete, localized” problems.
“The district court's expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems,” Winchester wrote. “Further, the district court stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far.”
The majority said the high court has followed criminal and property-based limitations on the public nuisance law for 100 years.
“Without these limitations, businesses have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products, i.e., will a sugar manufacturer or the fast food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution,” the opinion states.
Oklahoma Attorney General John O’Connor’s office and Johnson & Johnson did not immediately respond to requests for comment after the ruling.
Justice James E. Edmondson noted in his dissent that Johnson & Johnson has since stopped marketing opioids in Oklahoma with deceptive practices, but that injury to the state from past conduct remains. He writes that he would have reversed the verdict and sent the case back to the trial court for a new award.
“I would remand to the district court to recalculate damages based upon J&J's share of the market in the years it sold its opioids in Oklahoma with its deceptive marketing scheme,” Edmondson writes. “The attorney general's basic theory of the case is tenable, both in law and equity.”
Oklahoma’s lawsuit against Johnson & Johnson was the first such opioid crisis lawsuit to go to trial, with over 2,000 cases filed in state and federal courts nationwide. Approximately 1,400 of the federal cases were consolidated in Ohio federal court. Judge Balkman said at the time of the verdict that his initial $572 million award was intended to fund the immediate remediation of the nuisance.
Several months later, Balkman was forced to reduce the $572 million award by $107 million to $465 million after admitting to a calculation error. It appears he incorrectly entered $107 million for the cost of neonatal abstinence syndrome treatment evaluation standards, not the $107,000 that was intended.
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