OKLAHOMA CITY (AP) — The Oklahoma Supreme Court on Tuesday overturned a $465 million 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 U.S. to go to trial.

This ruling came as a second blow to the government’s case, which used the same approach to attempt to hold drugmakers accountable for the nation’s opioid epidemic. Public nuisance claims are at the heart of some 3,000 lawsuits brought by state and local governments against drugmakers, distribution companies and pharmacies, but it’s not clear that the legal theory is in trouble with so many more cases queued up to test it.

The court ruled in a 5-1 decision that District Judge Thad Balkman in 2019 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,” according to the opinion written by Justice James R. Winchester.

The Oklahoma Supreme Court has overturned a $465 million opioid ruling against drugmaker Johnson & Johnson, finding that a lower court wrongly interpreted the state’s public nuisance law.
AP Photo/Steven Senne, File

“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 then used the products.

The high court said that although it wouldn’t want to downplay the suffering that thousands of Oklahomans have gone through because of opioids, 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 for several years,” since 2015, Winchester wrote. “Even with J&J’s marketing practices these … medications amounted to less than 1% of all Oklahoma opioid prescriptions.”

According to state statistics, more than 4600 Oklahomans died of opioid overdoses between 2007 and 2017. This includes prescription painkillers as well as illicit and legal fentanyl.

Since 2000, more than 500,000 people have died in the US from opioids.
The court also rejected the state’s appeal to increase the damages award. The state was planning to use the $465 million 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 that 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 former state Attorney General Mike Hunter was the first of thousands of similar lawsuits to go to trial, the state Supreme Court’s ruling doesn’t necessarily spell doom for the others.

Elizabeth Burch is a University of Georgia School of Law Professor who follows the case for opioid litigation. She said that other juries and judges might decide cases differently.

“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 of the University of Richmond School of Law noted that public nuisance laws in different states vary, and that the California ruling might be modified by a higher judge.

“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.”

Oklahoma was the first case of its type to proceed to trial. California’s is also unique as it saw a jury issue a verdict. However, most cases settled prior to or during trials. However, other opioid-related cases that are rooted under public nuisance law will be before juries at a New York state court and in Cleveland’s federal court. A West Virginia judge is also expected to rule soon.

Oklahoma’s current attorney general, John O’Connor, said he was disappointed by the ruling that overturned a “huge victory” for those suffering from opioid abuse.

“Our staff will be exploring options,” O’Connor said in a statement. “We are still pursuing our other pending claims against opioid distributors who have flooded our communities with these highly addictive drugs for decades.”

Three companies who distribute opioids have also been sued by the state.
Johnson & Johnson said in a statement that the ruling appropriately overturned a “misguided and unprecedented” attempt to expand public nuisance laws.

“We recognize the opioid crisis is a tremendously complex public health issue, and we have deep sympathy for everyone affected,” the drugmaker said. “The Company’s actions relating to the marketing and promotion of these important prescription pain medications were appropriate and responsible.”

Earlier this year, Johnson & Johnson agreed to pay $5 billion to settle similar lawsuits across the U.S. In a related deal, the nation’s three largest drug distribution companies also agreed to a $21 billion settlement over time. It’s up to the companies to decide whether to move ahead as they see how many government entities join. All companies agreed that there were enough states to enable them to conduct surveys of local governments.

Burch indicated that new Oklahoma and California court rulings might encourage some government officials to sign up rather than lose their claims.

Through the bankruptcy process, two other major opioid manufacturers, Purdue Pharma, and Mallinckrodt reached national settlements.

Justice James E. Edmondson, in dissent, stated that he would affirm the verdict and send the case back the district court for a recalculation of the damages award.

The state requested that the award be increased from $9.3 billion to $9.3B.
This report was contributed by Geoff Mulvihill, an Associated Press reporter from Cherry Hill, New Jersey.

Source: HuffPost.com.

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