Oklahoma judge orders J&J to pay state $572 million over opioid sales

“A judge in Oklahoma on Monday ruled that Johnson & Johnson had intentionally played down the dangers and oversold the benefits of opioids, and ordered it to pay the state $572 million.” The state had asked for $17 billion. [Jan Hoffman, New York Times and sidebar on why J&J, the deepest pocket, was the only defendant left standing in the Oklahoma case; opinion; Paul Demko, Politico; Lenny Bernstein, Washington Post] Caleb Brown interviewed me for the Cato Daily Podcast:

For other skeptical views of the case, see Daniel Fisher, Legal NewsLine (“J&J had about 3% market share, sold abuse-resistant drugs, and Oklahoma didn’t present evidence of a single doctor who was misled by its marketing.”) and followup (problems with state’s legal theory), Jeffrey Singer/Cato, and Jacob Sullum, Reason (sweeping definition of public nuisance) and followup (other problems). [More: Jonathan Turley]

Particularly worth noting is Jacob Sullum’s account of the logical path traced by Judge James Hill in North Dakota in recently dismissing a suit against Purdue Pharma:

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.

 

8 Comments

  • The baby shampoo company makes opiods? Really?

    • Yes, J&J has been in pharmaceuticals for 130 years. The general public may know them best for baby shampoo, but they’ve been a drug company a lot longer. They also manufacture medical devices.

      • Huh. I had no idea they made anything besides baby products… I guess that bogus baby powder case was against them too?

  • […] discuss this week’s Oklahoma verdict here, and have also added it to yesterday’s longer post on the […]

  • If the libertarianish think tanks weren’t so timid, they would aggressively argue for restoration of the right to self-medicate. Instead, they dabble in bland utilitarianism wrapped in legalism. (No part of America is more overlawyered than the libertarian part.) The most important libertarian defense of self-medication, Szasz’s Our Right to Drugs, was not published by a think tank, unsurprisingly. Even fairly purist defenders of drugs, like Reason, use the language of the prohibitionist, such as drug “dealer.” If you ceded the language, you lose the battle.

    • Not sure which “libertarianish think tanks” this is meant as a swipe at. Cato has not been shy about publishing on the subject:

      https://www.cato.org/multimedia/cato-daily-podcast/pharmaceutical-freedom-why-patients-have-right-self-medicate

      It is true that this particular blog, that is to say Overlawyered, often advances utilitarian arguments and legal analysis based on precedent and existing jurisprudence. That is to be expected in a blog about litigation, so far as I can see. That goes especially when the topic is one like the proposed expansion of public nuisance law, which is full of implications for fields other than that of (self-) medication and trade in pharmaceuticals.

      If Overlawyered’s focus leaves you unsatisfied, you might want to try our sister Cato site Libertarianism.org, where you may find a greater share of arguments deriving from inherent rights and natural law:

      https://www.libertarianism.org/encyclopedia/drug-prohibition

  • […] Wax company, it kind of makes my point about the demagogic populism fueling these cases. [earlier] And maybe also my point about how the private trial lawyers on contingency fee, whose expectation […]

  • […] caused harm after being used by third parties not in court? Before such theories succeeded in an Oklahoma courtroom against Johnson & Johnson over its promotion of opioid painkillers, they had been […]

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