Oklahoma’s highest court reversed a historic ruling against drugmaker Johnson & Johnson on Tuesday, finding a judge incorrectly interpreted public nuisance laws in the nation’s first major trial over the opioid epidemic.
Companies scored a win last week in California when a judge said he would rule against several large counties arguing public nuisance claims because they had not proved deceptive marketing increased medically unnecessary prescriptions. Other cases hinging on similar arguments have not yet been heard or decided. In West Virginia, a federal judge is considering his ruling in a case that centers on a public nuisance claim, in which hard-hit communities allege distributors shipped opioids to their area without regard for red flags. The distributors have denied wrongdoing.
“In reaching this decision, we do not minimize the severity of the harm that thousands of Oklahoma citizens have suffered because of opioids,” the Oklahoma Supreme Court judges wrote in their ruling. “However grave the problem of opioid addiction is in Oklahoma, public nuisance law does not provide a remedy for this harm.”
The one dissenting judge, James E. Edmondson, said he disagreed with the ruling against J&J but thought the decision should be remanded to the lower court.
Johnson & Johnson praised the ruling Tuesday.
“Today the Oklahoma State Supreme Court appropriately and categorically rejected the misguided and unprecedented expansion of the public nuisance law as a means to regulate the manufacture, marketing, and sale of products, including the Company’s prescription opioid medications,” Johnson & Johnson spokesman Jake Sargent wrote in a statement.
Oklahoma Attorney General John O’Connor (R) said the 2019 decision was “a huge victory for Oklahoma citizens and their families who have been ravaged by opioids” and said he was “disappointed” in Tuesday’s ruling.
“Our staff will be exploring options. We are still pursuing our other pending claims against opioid distributors who have flooded our communities with these highly addictive drugs for decades. Oklahomans deserve nothing less,” he said in a statement.
The money from the decision was to be used to abate the overdose crisis in Oklahoma. Because the ruling was on appeal, none of the $465 million has been given to communities, J&J said.
Public nuisance law has evolved to cover a large, miscellaneous group of offenses against the community at large — a loud party disturbing a quiet neighborhood or a factory’s foul odor enveloping a city.
Some local governments have made public nuisance claims against firms such as ExxonMobil, Chevron and BP, arguing the carbon dioxide emitted into the atmosphere has contributed to climate change. The descendants of victims of the Tulsa race massacre have filed a public nuisance lawsuit, seeking reparations for the destruction of Greenwood, the city’s thriving, affluent Black community.
Tuesday’s decision in Oklahoma and the tentative ruling in California, both bench trials, should not be considered predictive of how other states’ courts may interpret public nuisance laws and opioids, said Elizabeth Burch, a University of Georgia law professor who has followed the opioid litigation.
“Are these two outlier opinions or are they trendsetters? I think it’s too early to be able to tell right now,” she said.
Still, the opinions could sway plaintiffs determining how to argue their cases or communities considering joining the national settlement announced in July, Burch said. Johnson & Johnson agreed to contribute up to $5 billion in a $26 billion deal with the top three distributors, McKesson, Cardinal Health and AmerisourceBergen, to resolve thousands of opioid claims. At least eight states have rejected a deal with J&J.
Meanwhile, cases against pharmacies and others remain ongoing, including one trial in federal court in Cleveland last month.
“There’s a lot still left to be litigated,” Burch said, “and there’s a lot that remains to be seen.”