Oklahoma Supreme Court Tosses Opioid Award Against J&J

(Bloomberg) -- The Oklahoma Supreme Court threw out a $465 million opioid award against Johnson & Johnson after finding a judge wrongfully concluded the drug maker violated state law with its marketing campaigns.

The state’s highest court on Tuesday ruled Judge Thad Balkman misconstrued Oklahoma’s public-nuisance law in ruling in 2019 J&J’s marketing of its painkillers helped fuel the state’s opioid epidemic. He concluded J&J should pay hundreds of millions to fund treatment and other social-services programs.

Oklahoma is one of many states and municipalities that have sued opioid makers such as J&J under public-nuisance law, accusing them of fueling an epidemic that’s killing more than 100 Americans a day.

Tuesday’s ruling was the pharmaceutical industry’s second recent win in the sprawling, four-year litigation over opioids. Last week, J&J, Teva Pharmaceutical Industries Ltd and other drug makers defeated a lawsuit by local governments in California claiming the companies created a public-health crisis through misleading marketing of their drugs.

First Judgment

In a statement, J&J expressed sympathy for those affected by the opioid crisis but maintained that its marketing was appropriate and responsible.

“Today the Oklahoma State Supreme Court appropriately and categorically rejected the misguided and unprecedented expansion of the public nuisance law as a means to regulate the manufacture, marketing, and sale of products, including the company’s prescription opioid medications,” said J&J spokesman Jake Sargent.

Oklahoma Attorney General John O’Connor said in a statement, “Our staff will be exploring options. We are still pursuing our other pending claims against opioid distributors who have flooded our communities with these highly addictive drugs for decades. Oklahomans deserve nothing less.”

The Oklahoma judgment was the first test of state and local governments’ ability to go after opioid makers, distributors and retailers under state public-nuisance laws. Such claims don’t require governments to prove individual doctors were lured into over-prescribing opioid painkillers. Instead, they can use experts to show the companies’ marketing as a whole was deceptive and led to a jump in addictions and often-fatal overdoses.

Judge Peter Wilson in California concluded on Nov. 2 that four municipalities couldn’t prove J&J and other opioid makers created a public nuisance with their opioid marketing and sales tactics. Wilson said the plaintiffs’ evidence of a huge jump in the number of opioid prescriptions over a decade didn’t’ meet the state’s public-nuisance test.

It was first time a judge or jury rejected claims by states or local governments that ex-opioid makers should be held liable for the fallout from the U.S. opioid epidemic, which has claimed the lives of almost 500,000 Americans over the last two decades.

Drawn Into Question

Juries in Ohio federal court and New York state court are still hearing evidence in suits seeking billions of dollars in compensation from opioid makers and pharmacies accused of creating public nuisances. West Virginia municipalities are awaiting the ruling of a federal judge who heard the public-nuisance case against McKesson Corp.

Richard Ausness, a University of Kentucky law professor who follows the opioid litigation, said he wasn’t surprised by the Oklahoma Supreme Court’s ruling.

“I’ve never had much confidence in the PN theory,” he said in an interview. “I think PN is concerned historically with activities that harm land and trying to expand it to something like this” isn’t appropriate. 

“I think it draws the whole public-nuisance approach for opioids into question,” Ausness added.

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