Oklahoma’s highest court on Tuesday issued a 2019 ruling requiring Johnson & Johnson to pay the state $ 465 million for its role in the opioid epidemic. It was the second time this month that a court has invalidated a key legal strategy used by plaintiffs in thousands of cases to blame the pharmaceutical industry for the crisis.
The Oklahoma Supreme Court, 5-1, dismissed the state’s argument that the company violated “public harassment” laws by aggressively overestimating the benefits of its prescription opioid pain relievers and downplaying the dangers.
The ruling, along with a similar statement from a California state judge dated Nov. 1, could herald that plaintiffs’ hopes for a positive resolution in courts across the country against opioid manufacturers, distributors and retailers will be dashed. The decision could also encourage companies to get involved.
However, since most public harassment laws are country-specific, it is unclear how much impact the Oklahoma decision could ultimately have on cases elsewhere. The Oklahoma Judges’ decision underscored their interpretation of the laws of their state.
“The Oklahoma Public Harassment Act does not cover the manufacture, marketing and sale of prescription opioids,” the judges wrote in majority opinion on Tuesday.
According to federal data, opioid abuse has contributed to the deaths of approximately 500,000 people in the United States since the late 1990s, and the number has worsened during the Covid pandemic.
The Oklahoma case was the first state lawsuit against an opioid manufacturer to appear in court. The August 2019 ruling sent an encouraging signal to plaintiffs’ attorneys across the country that their legal strategy might prevail – even though the amount the company ordered to pay was well below the $ 17 billion required.
In a statement, referring to Janssen, its pharmaceuticals division, Johnson & Johnson said it has “deep compassion” for all affected by the opioid epidemic. But the company added: “The clear and unimpeachable decision of the Oklahoma State Supreme Court reflects the facts of this case: Janssen’s actions in marketing and promoting these important prescription pain relievers were appropriate and responsible and did not cause public harassment.”
In their opinion, the jurors appreciated the company’s response that it had not advertised its products in recent years and sold one of its product lines in 2015.
The Oklahoma Attorney General alleged health was a public right that Johnson & Johnson violated under state law against public harassment. Other opioid manufacturers affected by the state’s lawsuit, including Teva and Purdue Pharma, settled their cases prior to the start of these banking proceedings against Johnson & Johnson in May 2019. This decision does not affect these agreements.
Oklahoma attorney general John O’Connor, disappointed with the decision, said, “We are still pursuing our other pending lawsuits against opioid traffickers who have been flooding our communities with these highly addictive drugs for decades. Oklahomans deserve nothing less. “
In the new ruling, judges said that Oklahoma’s 1910 Public Nuisance Act typically related to the repeal of a public right such as access to roads or clean water or air. The judges criticized the state’s case, saying it had not identified any public law under the Harassment Act and instead tried to apply a “new theory” to a more likely product liability case.
The damage alleged by the state came from the company’s legal product – prescription opioids approved by the Food and Drug Administration. Individuals suffered, the court ruled, not the public as a whole.
Other case flaws cited by the judges echo the criticism voiced earlier this month by a California state judge who also ruled in Johnson & Johnson’s favor. The company, according to Oklahoma justices, has no control over the distribution and use of its product after the drug leaves its jurisdiction – an argument that has been successfully used by gun manufacturers to set aside public annoyance.
“Regulation of prescription opioids is a matter of federal and state lawmakers and their agencies,” wrote the Oklahoma judges. They alluded to the FDA, the Drug Enforcement Administration, which is supposed to oversee pill drainage, and the state’s prescription surveillance program.
Elizabeth Burch, a law professor at the University of Georgia, warned that these two decisions should not be interpreted too broadly in order to predict the fate of other cases writhing through the courts, given that other states have their own public molestation laws.
She noted that the Oklahoma ruling went further than the California ruling by stating that the public harassment law should not be used against any entity in the drug supply chain, including retailers and pharmacies.
However, she said the ruling could potentially affect plaintiffs’ response to Johnson & Johnson’s major national settlement bid in July when it proposed paying $ 5 billion over nine years to resolve all opioid litigation.
The company’s offer must be accepted by a majority of the thousands of local governments that have filed lawsuits.
“If I were a plaintiff who wasn’t sure he was the J. & J. If I were risk averse, that judgment could bring me closer to settlement, ”said Burch.