“An Oklahoma Opioid Stickup”: The Wall Street Journal editorial board took aim at yesterday’s ruling by an Oklahoma judge that Johnson & Johnson must pay $572 million for what Judge Balkman called “misleading marketing” of opioids in the state, even though the company’s sales make up less than one percent of Oklahoma’s prescription opioid market. Little of that money will go directly to plaintiffs, but their lawyers will take home $90 million.
As the editorial board points out, the ruling relied on a distorted application of public nuisance law, which does not require a direct causal link between a defendant’s action and harm to a plaintiff. With this bench verdict, Judge Balkman has added fuel to many of the over 2,000 cases in the federal opioid litigation in Ohio which rely on public nuisance. He has also effectively confirmed that public nuisance laws can be used to skirt the more stringent requirements of product liability law, validating recent efforts by the trial bar and state AGs to use this legal theory as a basis for suing energy companies over climate change. As ILR President Lisa Rickard said in response to the ruling, under public nuisance “almost any industry could be the target of large-scale litigation.”