Oklahoma court overturns $465m opioid ruling against Johnson & Johnson

The Oklahoma supreme court on Tuesday overturned a $465m opioid ruling against drugmaker Johnson & Johnson, finding that a lower court wrongly interpreted the state’s public nuisance law in the first case of its kind in the US to go to trial.

The ruling was the second blow this month to a government case that tried to hold drugmakers responsible for the national epidemic of opioid abuse. Public nuisance claims are at the heart of some 3,000 lawsuits brought by state and local governments against drugmakers, distribution companies and pharmacies.

The court ruled in a 5-1 decision that in 2019 a district judge, Thad Balkman, was wrong to find that New Jersey-based J&J and its Belgium-based subsidiary Janssen Pharmaceuticals violated the state’s public nuisance statute.

“The court has allowed public nuisance claims to address discrete, localized problems, not policy problems,” said the opinion written by Justice James R Winchester.

“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 company had no control over how patients used the products.

The high court said that although it wouldn’t want to downplay the suffering of thousands of Oklahomans, the question was whether the company’s marketing and sale of opioids created a public nuisance.

“J&J no longer promotes any prescription opioids and has not done so” since 2015, Winchester wrote. “Even with J&J’s marketing practices these … medications amounted to less than 1% of all Oklahoma opioid prescriptions.”

State statistics show that from 2007 to 2017, more than 4,600 people in Oklahoma died from overdoses from opioids, including prescription painkillers and illicit versions such as heroin and illegally made fentanyl. Nationally, opioids have been linked to more than 500,000 deaths since 2000.

The court also rejected the state’s appeal to increase the damages award. The state was planning to use the $465m to fight the opioid crisis, but said that wasn’t nearly enough to pay for the harm it has done.

The ruling comes a week after a California judge issued a tentative ruling that said local governments had not proven Johnson & Johnson and other drugmakers used deceptive marketing to inflate prescriptions of their painkillers, leading to a public nuisance.

Although the Oklahoma lawsuit filed by the former state attorney general Mike Hunter was the first of thousands of similar suits to go to trial, the state supreme court ruling doesn’t necessarily spell doom for the others.

Elizabeth Burch, a University of Georgia School of Law professor, said other judges and juries might not decide their cases the same way.

“The question is still whether these are outliers,” she said. “I don’t think we have enough of a consensus on public nuisance law and where it goes and how it works.”

Carl Tobias, a professor at the University of Richmond School of Law, noted that public nuisance laws vary and that the California ruling could be altered by a higher court.

“Nuisance law varies from state to state, especially in this context because it’s so cutting edge,” he said. “We haven’t seen enough cases to sort this out and say whether it’s going to be a viable theory or not.

The Oklahoma case was the first of its kind to go to trial, and the one in California is the only other where a verdict was issued, as most cases have been settled. But other opioid trials rooted in public nuisance law are happening in federal court in Cleveland and state court in New York. A ruling is expected soon in West Virginia.

Spokespeople for the Oklahoma’s current attorney general, John O’Connor, and for J&J did not immediately respond to a requests for comment.

Earlier this year, Johnson & Johnson agreed to pay $5bn to settle similar lawsuits across the US. In a related deal, the nation’s three largest drug distribution companies also agreed to a $21bn settlement over time.

Two other prominent opioid makers, Purdue Pharma and Mallinckrodt, have reached nationwide settlements through the bankruptcy process.

In Oklahoma, in dissent, Justice James E Edmondson said he would uphold the verdict but send the case back to district court to recalculate the damages award.
The state had asked that the award be increased to $9.3bn.



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