The Oklahoma Supreme Court reversed a landmark $465 million opioid ruling against drugmaker Johnson & Johnson (J&J), finding that a lower court incorrectly interpreted the state’s public nuisance law.  According to the law, a “nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: Annoys, injures or endangers the comfort, repose, health, or safety of others; Offends decency; Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property, provided, this section shall not apply to preexisting agricultural activities.”The state’s high court reached its decision by a 5-to-1 vote, finding that the company can’t be held liable for the crisis.  The overarching argument is that public nuisance was not created to address something as multifaceted as the opioid crisis.  This is the case despite that fact that in 2019, District Judge Thad Balkman originally ruled that J&J had created a “public nuisance” through its marketing of prescription pain pills.

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At the time, Oklahoma’s attorney general, Mike Hunter, was pleased with the lower court’s decision, stating, “We would have liked to walk out of here with $17 billion, but we’ve been able to put together a billion dollars.” His comment referred to the amount the state had originally sought in its litigation against the drugmaker.“J&J supplied 60 percent of the opiate ingredients that drug companies used for opioids like oxycodone when it entered into a contract with Tasmania-based poppy growers,” the state contended during the proceedings.  Janssen Pharmaceuticals, one of J&J’s subsidiaries, made its own opioids, including a fentanyl patch it still manufacturers.“The critical finding is that Johnson & Johnson engaged in false, deceptive and misleading marketing,” agreed Abbe R. Gluck, professor of health policy and law at Yale Law School, two years ago.  Oklahoma alleged, in general, that in the eleven-year span from 2000 through 2011, the company’s sales team conducted an estimated 150,000 visits to Oklahoma physicians.“Those actions compromised the health and safety of thousands of Oklahomans.  Specifically, defendants caused an opioid crisis,” Balkman said.This month’s ruling emphasized that a catastrophic crisis like the nationwide the opioid epidemic could not fall under state public nuisance law.  The epidemic was created over years and affected millions of Americans across multiple states.“The court allowed public nuisance claims to address discrete, localized problems, not policy problems,” the Oklahoma Supreme Justices ruled. “Erasing the traditional limits on nuisance liability leaves Oklahoma’s statute impermissibly vague.”J&J called the Supreme Court’s decision to side with it a vindication, stating, “Today the Oklahoma State Supreme Court 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.”In a separate ruling earlier this month, California Superior Court Judge Peter Wilson decided that “communities suing the drug industry failed to prove their marketing of opioids created a public nuisance,” adding, “there is no evidence supporting a causal connection between the alleged conduct and medically inappropriate prescriptions.”These rulings seem to indicate that any opioid argument pursued with public nuisance at the center could be at risk of being shot down or overturned.

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Oklahoma’s Supreme Court tossed out a landmark $465 million opioid ruling2006 Oklahoma Code - Title 50. — NuisancesBalkman Decides J&J Will Pay $572 Million to Oklahoma