OKLAHOMA CITY — Johnson & Johnson attorneys say the company's appeal of Monday’s $572.1 million opioid verdict likely will hinge in part on a whether a Cleveland County judge correctly applied Oklahoma’s public nuisance law.
Up until now, the law has been used to regulate property disputes, not to regulate commercial activity and prescription medications, said Sabrina Strong, attorney for the New Jersey-based pharmaceutical company.
Strong said District Judge Thad Balkman’s decision that the company created a public nuisance by launching a misleading marketing campaign violates well-established constitutional principles including due process.
“(Monday’s) decision reflects a radical departure from more than a century of case law in this state,” Strong said. “For over 100 years, public nuisance law has been limited to property disputes — where one misuses their property and causes harm to another. … No Oklahoma court has ever done what this court has done today in applying public nuisance law to any commercial activity, let alone the highly regulated area of prescription medicines.”
Strong said the company plans to vigorously appeal the verdict to the state Supreme Court and the U.S. Supreme Court, if necessary.
Balkman declined to comment.
While a spokesman for the Oklahoma Attorney General’s Office said he’s confident the verdict will hold up on appeal, legal observers weren’t as sure.
Andy Coats, a professor of law and dean emeritus at the University of Oklahoma College of Law, said it’s going to be interesting to see how the appeal fares. He said the company first must appeal to the Court of Civil Appeals. The company is not guaranteed a hearing with the Oklahoma Supreme Court.
Oklahoma’s statute though is broadly written and only requires that someone do a wrongful act that irritates, annoys or harms a significant number of people, he said. And that’s the basis on which the state’s action was brought.
However, North Dakota also has the same public nuisance language in its statute, and a judge there tossed a similar lawsuit against OxyContin-maker Purdue Pharma, Coats said. Oklahoma settled with Purdue Pharma and Teva Pharmaceuticals for more than $350 million ahead of trial.
Coats said public nuisance lawsuits in other parts of the country have netted mixed results.
“I don’t think anybody has really tested this theory in front of an appellate court,” he said. “If it works, it’s a brilliant move.”
Nina A. Kohn, a professor of law at Syracuse University College of Law, said Oklahoma’s law is broader than those in many states, so the viability of using it to sue opioid companies will vary.
Oklahoma’s verdict marked the conclusion of the first opioid trial in the nation. The industry still is facing thousands of other lawsuits from states, tribes and local governments.
She said the ruling sets an important precedent that Johnson & Johnson’s behavior can constitute a public nuisance.
“I think there is a good chance (Balkman’s ruling) will withstand appeal, but no one can be certain,” she said.
She said district judges’ factual findings typically are entitled to deference, and most appellate courts will uphold them unless a judge misinterpreted the statute.
“I think the trial court reasonably read Oklahoma’s public nuisance statute as covering this type of misfeasance,” Kohn said.
But Lisa A. Rickard, president of the U.S. Chamber of Commerce’s Institute for Legal Reform, said in a statement that Balkman’s decision “is based on questionable legal claims from an ill-conceived lawsuit.”
“Oklahoma’s case hinged on the specious legal claim of public nuisance meant to address property disputes, not large-scale policy issues,” she said.
Rickard said letting lawyers distort the scarcely-used public nuisance theory in hopes of getting a massive settlement isn’t the solution.
“Oklahoma’s appellate courts must correct this decision,” she said. “If not, almost any industry could be the target of large-scale litigation.”
Norman Transcript reporter Adam Troxtell contributed to this report. Stecklein covers the Oklahoma Statehouse for CNHI's newspapers and websites. Reach her at email@example.com.