Nuisance law central to appeal in Oklahoma opioid case
NORMAN — Oklahoma’s unusual use of public nuisance law in the opioid case against Johnson & Johnson will be a key issue in the drug company’s appeal of a $572 million judgment, a company attorney said Monday.
“No Oklahoma court has ever done what this court has done today in applying public nuisance law to any commercial activity, let alone the highly regulated area of prescription medicines,” said Sabrina Strong, attorney for Johnson & Johnson.
“The decision violates well-established constitutional principles, including due process of law.”
About six weeks before the trial’s start in late May, Oklahoma Attorney General Mike Hunter dropped most of the original complaints filed against the drug companies, including fraud and unjust enrichment.
Instead, the state focused on proving the drug companies had created a public nuisance and should be required to fund a comprehensive remediation plan.
Cleveland County District Judge Thad Balkman found Monday that the state met the burden of proving the companies created a public nuisance. Deceptive marketing constitutes a public nuisance in Oklahoma, he ruled, and the companies’ actions caused harm.
“This nuisance has negatively impacted the entire State,” Balkman said in his ruling. He ordered Johnson & Johnson and its subsidiaries named in the lawsuit to pay $572 million immediately for various programs to abate the nuisance.
The state had sought more than $17.2 billion over 20 or 30 years. Balkman’s judgment gave the state one year of abatement.
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Though the ruling was seen as a victory for Johnson & Johnson, given the amount sought by the state, Hunter stood by the decision not to pursue other claims against the company.
“The complexities of the other claims in our case we evaluated carefully,” Hunter said Monday.
“Again we’re looking toward: What do we need to do to address not only the present but the future?
“As we looked at public nuisance law, it was clear to us that was the best way to maximize any kind of judgment we were able to obtain in court here. So, no looking back. We made the right decision, I’m confident.”
Strong, the attorney for Johnson & Johnson, didn’t see the decision as a victory and said an appeal was being drafted for the Oklahoma Supreme Court.
“Today’s decision reflects a radical departure from more than a century of case law in this state,” she said.
“For over 100 years, public nuisance law has been limited to property disputes, where one misuses their property and causes harm to another. That is not what this case is about.”
Using the law in that manner deprived the companies of due process, Strong said.
The companies are working on the appeal to the Oklahoma Supreme Court but are willing to going to the U.S. Supreme Court, Strong said.
“We do believe these are issues that will be of interest to the United States Supreme Court if necessary,” she said.