Recently, the Wall Street Journal published an editorial praising the Oklahoma Supreme Court for overturning a $465 million verdict in a lawsuit against Johnson & Johnson that sought to expand the public nuisance theory.
The November 9 decision overturned a lower court ruling premised solely on the theory that the company created a public nuisance in Oklahoma through its marketing and sale of pharmaceutical opioid products. The Court opined in its ruling “…that the district court’s expansion of public nuisance law went too far” and that “[t]he court has allowed public nuisance claims to address discrete, localized problems, not policy problems.”
According to the WSJ editorial, “under the trial court’s expansion of public-nuisance liability, businesses would ‘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.’”
The WSJ editorial points out that the “the Justices stressed that addressing social problems like opioid addiction is the job of the legislative and executive branches, not the courts
The Oklahoma decision came after a California judge rejected the public nuisance argument in a case brought by a handful of municipalities. The judge found “…that plaintiffs have failed to prove an actionable public nuisance for which defendants, or any of them, are legally liable.”
For the past several years, ILR has highlighted the many problems associated with an expansive application of public nuisance law including its 2019 publication of Waking the Litigation Monster: The Misuse of Public Nuisance.