Oklahoma Supreme Court Rejects Public Nuisance Expansion in Landmark Opioid Case

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2019 Opioid Ruling Overturned

Today, the Oklahoma Supreme Court overturned the landmark 2019 opioid ruling in the state.  By doing so, the Court rejected a lower court’s expansive view of the state’s public nuisance law in Oklahoma ex rel. Hunter v. Johnson & Johnson

The American Tort Reform Association (ATRA) was a vocal critic of former Attorney General Mike Hunter’s use of the public nuisance legal theory to target manufacturers of heavily regulated pharmaceutical products, particularly given the former attorney general’s opposition to using the same law to target energy producers in climate litigation.

“The Oklahoma Supreme Court has rejected the state’s former attorney general’s effort to expand the law of public nuisance to the manufacture, marketing and selling of a legal product,” ATRA President Tiger Joyce said. “This lawsuit against opioid manufacturers and the subsequent $465 million verdict would have dramatically expanded public nuisance law far outside of the legal mainstream and caused great concern for manufacturers of all products.”

In its opinion, the Oklahoma Supreme Court stated “Without these limitations, businesses have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products, i.e., will a sugar manufacturer or the fast food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution. We follow the limitations set by this Court for the past 100 years: Oklahoma public nuisance law does not apply to J&J’s conduct in manufacturing, marketing, and selling prescription opioids.”

ATRA filed an amicus brief in October 2020 in support of Johnson & Johnson’s decision to appeal the judgment, warning against the then-attorney general’s expansive use of public nuisance law.

“We have long held that opioid addiction is a serious problem demanding serious, policy-based solutions,” Joyce said. “But it calls for a response from public health officials and legislators – not lawsuits. Rejecting this judgment, will rein in the expanse of public nuisance law’s applicability and set a precedent for other states that may look for additional litigation targets to address public health problems.”

The Oklahoma Supreme Court agreed and pointed out in its opinion that, “The Court has allowed public nuisance claims to address discrete, localized problems, not broader policy problems. Erasing the traditional limits on nuisance liability leaves Oklahoma’s nuisance statute impermissibly vague. The district court’s expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems … [t]he district court stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far. This Court defers the policy-making to the legislative and executive branches and rejects the unprecedented expansion of public nuisance law.”

“It is encouraging to see the Court highlight the historical underpinnings of the public nuisance tort and the implications that such a far-reaching verdict could have on lawful business activities in Oklahoma,” Joyce said.

In 2019, Cleveland County Judge Thad Balkmanruled that Johnson & Johnson had created a public nuisance through its marketing of ingredients used to make opioids. Judge Balkman awarded $572 million to fund an “abatement program” in August 2019 ­ – an amount he viewed as equal to that which is needed to combat the opioid epidemic in the state for one year. It is an extraordinary sum, though far less that the $17.5 billion sought by the state. About six weeks later, however, Judge Balkman admitted that he had made a $107 million math error, and indicated that he would reduce the judgment to $465 million.

Oklahoma’s interpretation of public nuisance law made the state a national outlier and contributed to its No. 8 ranking in the American Tort Reform Foundation’s 2019-2020 Judicial Hellholes® report. 

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