In August of 2019, following a seven-week bench trial, Judge Thad Balkman of Oklahoma’s Cleveland County District Court found biotech and healthcare company Johnson & Johnson responsible for sparking the state’s opioid epidemic through use of “disingenuous marketing schemes” used to drive the sale of its prescription painkillers. This ruling, which ordered Johnson & Johnson to pay the state of Oklahoma $572 million dollars in damages, resulted in the first ever successful lawsuit brought by the state against a defendant drug manufacturer stemming from a sole cause of action: public nuisance.
Historically, the tort of public nuisance has generally been restricted to addressing everyday quasi-criminal conduct that interfered with public rights; and further, primarily dealt with freedom of unobstructed movement and usage of land. However, in this case, the state of Oklahoma advanced an unconventional legal strategy under state law which defines a public nuisance as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.” 50 Okl.St.Ann. § 2. With the aforementioned definition in mind, the state proffered evidence demonstrating that over the course of four years 18 million opioid prescriptions were written by doctors for patients in Oklahoma—whose population only hovers around 3.9 million residents. Moreover, the state testified that in the past 20 years approximately 6,000 Oklahoma residents have died from opioid-related overdose, with thousands more left coping with opioid addiction.
The Court noted that Johnson & Johnson’s act of enabling the flooding of Oklahoma’s city blocks with prescription pain killers that resulted in opioid-related deaths combined with: (1) sales to high volume opioid prescribing doctors; (2) creation of prescription medication comprised of highly addictive fentanyl; (3) contracting with Tasmanian poppy growers to supply upwards of 60% of opioid ingredients to U.S. drug manufacturers; (4) aggressive marketing campaigns promoting use of opioids for common everyday pain; and (5) deceitfully ensuring doctors and the general public the pain killers had a low risk of addiction and abuse—together, collectively, confirmed the state’s chief legal argument: Johnson & Johnson’s conduct, over time, generated a public nuisance in violation of 50 Okl. St. Ann. § 1 et seq..
Although public nuisance laws are usually applied in their traditional sense, a new trend is quickly emerging where the plaintiff’s bar is using this unconventional theory to advance claims involving a myriad of toxic torts, gun control, and environmental pollution.
By using this theory, plaintiffs asserting claims of public nuisance often contend that causation standards germane to traditional torts do not apply. In response, some courts have found that non-application of causation entirely evades the issue of whether a particular defendant actually caused a claimed injury; and, rather concentrates on whether substantial participation is enough to be construed as a threat to the public—in violation of a state’s nuisance statute. On the other hand, other courts have already reduced the causation requirement and are satisfied with simple proof that a defendant’s acts played more than a hypothetical role in creating a public nuisance. Proponents of traditional public nuisance claims argue that a court or particular jury would then be allowed to establish public policy for an entire state, instead of allowing a legislative branch to properly address the issue.
With over 2,000 opioid lawsuits pending in local, state, and federal jurisdictions across the country, opioid manufacturers, distributors, and the law firms that defend them should brace themselves, as this Oklahoma verdict is merely the tip of the iceberg in this type of nuisance litigation.
