Oklahoma Judge Thad Balkman heard in July closing arguments in Attorney General Michael Hunter’s lawsuit against Johnson & Johnson. The case was the first government opioid case to go to trial out of thousands of lawsuits filed nationwide.
There is no doubt that opioid abuse has become an epidemic with an enormous human toll. The Centers for Disease Control reported that between 1999-2017 almost 400,000 people died from overdosing on either prescription or illicit opioids.
Unfortunately, the lawsuits brought by publicity-seeking politicians (from both political parties) are a disingenuous attempt to exploit a crisis in order to raise public money without raising taxes.
In the Oklahoma case, Mr. Hunter seeks a whopping $17 billion. That kind of money pays for a heck of a lot of Narcotics Anonymous meetings and public service announcements.
Mr. Hunter’s theory of liability is that by overstating the benefits of opioids as treatment for chronic pain, Johnson & Johnson created a “public nuisance” in the state of Oklahoma. But a public health crisis is not the same as a public nuisance.
Legally, a public nuisance is an unreasonable interference with a common right. Typical examples include the blockage of a public roadway or the pollution of a common drinking source. In such circumstances, the government might seek a court order requiring the wrongdoer to unblock the road or clean up the water supply.
The purpose of public nuisance law is to protect public access — not to regulate private sector companies by judicial fiat or to fund government programs without having to raise taxes or make tough budgetary decisions.
The weaponization of litigation is not a new phenomenon. In the 1990s, 46 states brought a legally weak case against cigarette makers, claiming a public nuisance in the form of smoking-related diseases. To avoid endless litigation in multiple jurisdictions, the tobacco companies settled for hundreds of billions of dollars.
In the end, however, the states spent only a minute fraction of the money they received on prevention. Most of the settlement money went to pay for general government programs and to pay attorneys’ fees.
Unlike cigarettes, which have no health benefits, opioids can be beneficial when used as prescribed. Legal precedents also favor the pharmaceutical industry.
More than two decades ago, in Ashley County v. Pfizer, the United States Court of Appeals for the 8th Circuit rejected a claim by 20 Arkansas counties against the manufacturer of over-the-counter cold medicine that sought reimbursement for the costs of an earlier drug epidemic.
The appellate court held that plaintiffs could not prove Pfizer’s actions were the “proximate cause” of the drug problem or of the government’s decision to increase spending.
Earlier this year, judges in Connecticut and North Dakota adopted similar reasoning in dismissing cases against the makers of prescription pain-killers. Courts, reasoned Judge Thomas Moukawsher of Connecticut, should not be in the business of determining “causation by conjecture.”
Nevertheless, in Oklahoma, Judge Balkman refused to dismiss Mr. Hunter’s case, leading Teva Pharmaceuticals and Purdue Pharma to settle for $85 million and $270 million, respectively. Neither company admitted wrongdoing.
Johnson & Johnson decided to take its chances at trial. Judge Balkman is expected to issue his ruling later this summer.
It’s bad enough that some politicians bring frivolous lawsuits against unpopular companies for the purpose of extorting settlements. A judgment against Johnson & Johnson in the Oklahoma case would distort public nuisance doctrine beyond all recognition and put other politically vulnerable industries at risk.
Should Hunter prevail, “Big Tech,” “Big Auto,” “Big Food” would no doubt be next. Even industries, such as guns and vaccines, that are partially shielded from tort suits by federal law would face shakedowns by cash-strapped jurisdictions seeking creative new revenue streams.
Sadly, most people today know of someone who has grappled with opioid addiction. The abuse of public nuisance law won’t solve the crisis. When courts reward the greedy hand of government, it is consumers who pay in the form of higher prices and reduced access to legal products.