Story at a glance
- The Oklahoma supreme court overturned a $465 million opioid ruling against drugmaker Johnson and Johnson, claiming the court that had delivered that ruling had misinterpreted the state’s public nuisance law.
- A similar tentative ruling was issued by a California judge last week.
- Oklahoma’s supreme court also rejected the state’s appeal to increase the damages award, which the state had said was not nearly enough to fight its opioid crisis.
The Oklahoma supreme court on Tuesday threw out a $465 million ruling against Johnson and Johnson for its role in the state’s opioid addiction crisis, finding that the lower court which had handed down that ruling had wrongly interpreted state law.
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The court found that the state’s public nuisance law, at the heart of some 3,000 lawsuits against drugmakers, was misunderstood in the initial ruling, according to an opinion written by Justice James R. Winchester.
“The court has allowed public nuisance claims to address discrete, localized problems, not policy problems,” he wrote. “J&J had no control of its products through the multiple levels of distribution, including after it sold the opioids to distributors and wholesalers, which were then disbursed to pharmacies, hospitals, and physicians’ offices, and then prescribed by doctors to patients.”
The ruling also said the drugmaker had no control over how patients used the drugs once the drugs had been given to them.
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Winchester said that while the court was not downplaying the suffering and, in many cases, deaths, of affected Oklahomans, the question was whether Johnson and Johnson’s marketing and sale of opioids created a public nuisance. The high court found it did not.
“J&J no longer promotes any prescription opioids and has not done so” since 2015, Winchester wrote, and the company’s medications accounted for less than 1 percent of all Oklahoma opioid prescriptions.
The ruling is the second blow dealt to a government case trying to hold drugmakers accountable, and last week a California judge said local governments had not proven that Johnson and Johnson and others had used deceptive marketing tactics to create a public nuisance.
But that doesn’t necessarily mean all other public nuisance arguments will be thrown out. Trials of this kind are relatively new, and public nuisance laws aren’t uniform.
“Nuisance law varies from state to state, especially in this context because it’s so cutting edge,” Carl Tobias, a professor at the University of Richmond School of Law, told The Guardian. “We haven’t seen enough cases to sort this out and say whether it’s going to be a viable theory or not.”
More than 2,100 Oklahomans died from an unintentional prescription opioid overdose from 2011 to 2015, according to the state’s health department, more than alcohol- and illicit drug-related deaths combined. Nationally, opioids, including prescription painkillers and illicit versions like heroin and fentanyl, have been linked to more than 500,000 deaths since 2000.
Johnson and Johnson was brought to trial in 2019 after a lawsuit was filed in 2018 by former Oklahoma attorney general Michael Hunter, seeking $17.2 billion in damages. It was the first of thousands of similar suits to go to trial.
The court on Tuesday also rejected the state’s appeal to increase the damages award to $9.3 billion, which the state had been planning to use to fight the opioid crisis. Authorities in Oklahoma said the $465 million award wasn’t nearly enough.
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