Does Reversal of Historic Opioid Ruling in Oklahoma Spell Trouble for Climate Liability Suits?

The Oklahoma Supreme Court on Tuesday threw out a landmark 2019 ruling that required Johnson & Johnson to pay the state nearly half a billion dollars to help address the opioid epidemic, and according to some critics, it may have paved the way for judges elsewhere to invalidate similar lawsuits as well as those seeking to hold the fossil fuel industry accountable for propelling the climate crisis.

"Are these two outlier opinions or are they trendsetters?"

Oklahoma had contended that J&J violated "public nuisance" laws by exaggerating the benefits and downplaying the risks of its highly addictive prescription opioid painkillers, winning a $465 million settlement to fund one year of recovery services--a fraction of the $17 billion sought--in the first state lawsuit against an opioids manufacturer to reach trial. In a 5-1 decision, however, the state's high court reversed a district court's August 2019 ruling, rejecting the plaintiff's legal strategy.

Judges said that the state's 1910 public nuisance law "typically referred to an abrogation of a public right like access to roads or clean water or air," the New York Timesreported. Although the Oklahoma attorney general's office had argued that health is a public right that J&J violated, judges said that the state "failed to identify a public right under the nuisance law and had instead attempted to apply a 'novel theory' to what was more likely a products liability case."

Moreover, the court said, opioids harmed individuals, rather than the public at large, and J&J "had no control over the distribution and use of its product once the drug left its purview--an argument used successfully by gun manufacturers to turn aside public nuisance litigation," the Times noted.

The Oklahoma Supreme Court's ruling came just one week after a California state judge rejected claims by local governments that opioid makers were liable for creating a public nuisance. That means, the Times reported, that "it was the second time this month that a court has invalidated a key legal strategy used by plaintiffs in thousands of cases attempting to hold the pharmaceutical industry responsible" for a public health crisis that has killed roughly half a million people in the U.S. since the late 1990s.

"These latest rulings represent back-to-back victories for the pharmaceutical industry," NPRreported. "But Carl Tobias of the University of Richmond, an expert on opioid litigation, said it's too early to conclude" that lawsuits brought by more than 3,000 state, tribal, and local governments--based on similar arguments that drug makers, distributors, and retailers created a public nuisance by inundating communities with extremely addictive pills--"are likely to fail."

However, others warned that in addition to potentially undermining nationwide efforts to hold Big Pharma accountable for its role in the opioid epidemic, the pair of recent decisions could open the door for judges to strike down dozens of climate liability lawsuits that seek to make Big Oil pay for polluting the atmosphere with greenhouse gases and the public with disinformation, given that the legal reasoning is so similar.

Writing for the majority, Oklahoma Supreme Court Justice James Winchester argued that without a strict interpretation of public nuisance laws, "businesses 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."

Meanwhile, Peter Wilson, the California judge who recently dismissed public nuisance lawsuits against opioid manufacturers, "could have just as well been speaking about a wave of similar lawsuits against the oil and gas industry," Daniel Fisher argued Tuesday in Legal Newsline.

"In both cases," Fisher wrote, "lawyers working on contingency have allied with government officials to sue companies producing legal products over the side effects from their use, in one case opioid addiction and in the other the accumulation of global-warming CO2 in the atmosphere. In both cases, the public nuisance theory hinges upon the nebulous boundary between the social benefits of widely used products and the inevitable damage they can cause."

"With their climate lawsuits," Fisher continued, "state and local governments--also often represented by private lawyers working on contingency--claim ExxonMobil, Shell, BP, and other oil and gas companies, along with industry associations, misled consumers about the science of global warming and thus induced them to consume more fossil fuels than they otherwise would have."

"The theory is almost identical to the one Judge Wilson and others have rejected in opioid public nuisance cases," he wrote. "In those cases, plaintiffs have attempted to prove, through the opinions of their expert witnesses, that opioid manufacturers and distributors used false advertising and misleading marketing to convince physicians to prescribe too many opioids, which in turn caused an increase in addiction and overdose deaths."

Fisher added:

The problem with this theory, Judge Wilson wrote, is that it isn't enough to link increased sales of a product with increased side effects. Both the federal government and California approve of and specifically encourage the medically appropriate use of opioids to treat pain, the judge wrote, and the plaintiffs made no attempt to identify the damage caused by appropriate versus inappropriate prescriptions.

"The court must draw a distinction between conduct resulting in the anticipated, approved use, and conduct resulting from improper use," the judge wrote. "The evidence does not permit the court here to draw (and measure) that distinction."

Climate plaintiffs face a similar hurdle. While it is easy to claim, as Massachusetts Attorney General Maura Healey does in her state's climate lawsuit, that the oil and gas industry engaged in false marketing to stimulate sales, the companies reply that they are specifically encouraged by state and federal law to drill for oil and produce refined products.

An added problem for climate plaintiffs, should judges follow the lead of Wilson, is individual states cannot possibly separate the harms from global warming they attribute to fossil fuels within their borders from harms caused by greenhouse gas emissions elsewhere around the world. That necessarily involves questions of federal and international law, defendants say, over which state courts can't claim jurisdiction.

Back to the opioid cases making their way through courts, others stressed that public nuisance laws vary by state, making predictions impossible at this stage.

"Tuesday's decision in Oklahoma and the tentative ruling in California, both bench trials, should not be considered predictive of how other states' courts may interpret public nuisance laws and opioids, said Elizabeth Burch, a University of Georgia law professor who has followed the opioid litigation," the Washington Post reported.

"Are these two outlier opinions or are they trendsetters?" she asked. "I think it's too early to be able to tell right now."

However, Burch "noted that the Oklahoma ruling went even further than the California decision, because it stated that public nuisance law couldn't be used against any entity in the drug supply chain, including distributors and pharmacies," the Times explained. "She said the ruling could potentially influence plaintiffs' response to Johnson & Johnson's major national settlement offer in July, when it proposed to pay $5 billion over nine years to resolve all opioid litigation against it."

"The company's offer," the newspaper added, "has to be accepted by a majority of the thousands of local governments that have sued."