STATE ex rel. ATTORNEY GENERAL OF OKLAHOMA v. JOHNSON & JOHNSON
2021 OK 54 (2021)
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Rule of Law:
Oklahoma's public nuisance law does not extend to the manufacturing, marketing, and selling of lawful prescription products, even when such actions are alleged to contribute to a widespread public health crisis, because public nuisance is traditionally limited to criminal or property-based conflicts.
Facts:
- Since the mid-1990s, Janssen Pharmaceuticals, Inc. (and its related entities), a wholly-owned subsidiary of Johnson & Johnson (collectively 'J&J'), manufactured, marketed, and sold prescription opioids like Duragesic (fentanyl) and Nucynta (tapentadol) in Oklahoma.
- J&J engaged in branded and unbranded marketing campaigns that promoted the concept that physicians were undertreating pain, overstated opioid benefits, downplayed dangers, and failed to disclose the lack of evidence supporting long-term use, intending to increase J&J's profits.
- J&J ceased actively promoting Duragesic by 2007 and divested its U.S. Nucynta product line by 2015, and no longer promotes any prescription opioids.
- J&J's Schedule II opioid medications accounted for less than 1% of all Oklahoma opioid prescriptions, and overall, J&J sold only 3% of all prescription opioids statewide.
Procedural Posture:
- On June 30, 2017, the State of Oklahoma, through its Attorney General Mike Hunter, sued three opioid manufacturers—J&J, Purdue Pharma L.P., and Teva Pharmaceuticals USA, Inc.—in the District Court of Cleveland County, alleging deceptive marketing of opioids.
- The State settled with Purdue Pharma L.P. for $270 million and with Teva Pharmaceuticals USA, Inc. for $85 million, and subsequently dismissed all claims against J&J except public nuisance.
- The District Court of Cleveland County conducted a 33-day bench trial focusing solely on whether J&J was responsible for creating a public nuisance in the marketing and selling of its opioid products.
- The district court held J&J liable under Oklahoma's public nuisance statute for conducting "false, misleading, and dangerous marketing campaigns" and ordered J&J to pay $465 million to fund one year of the State's Abatement Plan.
- J&J (Defendants/Appellants/Counter-Appellees) appealed the district court's judgment to the Oklahoma Supreme Court.
- The State of Oklahoma (Plaintiff/Appellee/Counter-Appellant) cross-appealed, arguing J&J should be responsible for 20 years of the Abatement Plan, totaling approximately $9.3 billion.
- The Oklahoma Supreme Court retained the appeal.
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Issue:
Does the manufacturing, marketing, and selling of lawful prescription opioids constitute a public nuisance under Oklahoma law, thereby making a pharmaceutical company liable for the societal harms of the opioid crisis?
Opinions:
Majority - Winchester, J.
No, the manufacturing, marketing, and selling of prescription opioids by J&J did not create a public nuisance under Oklahoma law, and the district court erred in expanding the public nuisance statute to cover such conduct. Public nuisance law has historically been limited to criminal or property-based conflicts, such such as physical injury to property or offensive activities rendering property uninhabitable. Extending this law to lawful products would create unlimited and unprincipled liability for manufacturers. The alleged harm, primarily related to failure to warn of dangers, sounds in product liability, a distinct cause of action. The Court identified three reasons for not expanding public nuisance: (1) product manufacturing and distribution rarely violate a "public right" (which refers to indivisible public resources like air or water, not an aggregate of private injuries); (2) a manufacturer loses control of its product once sold, making abatement (a traditional nuisance remedy) impossible; and (3) allowing such claims would sidestep statutes of limitations, leading to perpetual liability, which Oklahoma law rejects for traditional tort theories. The Court emphasized that addressing complex societal problems like the opioid crisis through public nuisance claims improperly shifts policy-making from the legislative and executive branches to the courts.
Concurring - Kuehn, J.
No, Oklahoma nuisance law is not, and without legislative amendment, never will be, a tort that encompasses the marketing of products. Justice Kuehn agreed with the majority's analysis, emphasizing that the state's nuisance statute codified common law public nuisance, which primarily involved injury to public property and was often a criminal misdemeanor. Because there is no legislative history suggesting an intent to broaden the statute beyond its common law meaning to include environmental tort claims or product marketing, the Court should adhere to its traditional interpretation. Expanding the law judicially would be an "unanticipated broad interpretation" that deprives persons of due process and allows courts to dictate public policy, which is the role of the Legislature.
Dissenting - Edmondson, J.
Yes, the State Attorney General possessed a cause of action for a public nuisance, but the district court's judgment should be reversed and remanded for a correct determination of damages. Justice Edmondson disagreed with the majority's narrow interpretation, arguing that a public nuisance does not always require a nexus to real property and can be created using chattel (personal property) that causes injury to a public right, especially when combined with false and misleading safety representations. He contended that the underlying wrongful conduct (deceptive marketing of opioids as safe products to increase prescriptions) can give rise to different types of actions, and the existence of a product liability remedy does not preclude a public nuisance claim. The dissent emphasized that Oklahoma’s nuisance statute covers "unlawfully doing an act, or omitting to perform a duty" that "annoys, injures or endangers the comfort, repose, health, or safety of others." He pointed to the trial court’s findings that J&J’s marketing intentionally increased physician prescriptions by misrepresenting addiction as "pseudoaddiction." The dissent also argued that abatement (stopping the nuisance) does not prevent recovery for past damages and that the State was seeking to remedy harm to the public purse caused by a public health crisis, a traditional role for public nuisance. He would remand for recalculation of damages based on J&J’s share of the market and its wrongful conduct.
Analysis:
This case significantly narrows the application of public nuisance law in Oklahoma, explicitly preventing its use against manufacturers for the lawful marketing and sale of products, even in the context of a public health crisis. The ruling reinforces the traditional distinction between public nuisance (criminal or property-based harm to public rights) and product liability (harms from defective products), and emphasizes judicial deference to legislative and executive branches for public policy issues. Future attempts to hold manufacturers liable for societal harms stemming from legal product use will likely need to rely on product liability or new legislation rather than public nuisance.
