On August 26, 2019, Judge Thad Balkman, District Court of Cleveland County, State of Oklahoma, issued his verdict and ruling finding that Johnson & Johnson was liable to the State of Oklahoma for $572 million (the plaintiffs asked for $17 billion) because J&J’s “marketing materials repeatedly used … deceptive ways to support misleading claims that downplay the risk of addiction and overstate the efficacy of opioids,” as well as “unsupported” claims “that opioids could be used safely for chronic non-terminal pain.”

If it sounds like a fraud-based, deceit, or false marketing tort claim, it was not.  Judge Balkman found Johnson & Johnson liable under Oklahoma’s Public Nuisance statute, 50 Okla. Stat. § 50-2, which states that “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”  Judge Balkman wrote that “the State has sufficiently shown that Defendants pervasively, systemically and substantially used real and personal property, private and public roads, buildings and land of the State of Oklahoma, to create this nuisance.”

Johnson & Johnson announced that it will appeal the bench verdict.  The ramifications if Judge Balkman’s ruling is upheld on appeal are huge, not only for the pain medication industry, but also for any industry that special interest groups and their plaintiffs’ attorney allies target, such as the environmental, chemical, vaping, firearms manufacturing, and energy industries. 

The legal ramifications are equally huge:  the question isn’t whether J&J or any other pharmaceutical company should be held liable if they are indeed provably responsible; the question is whether a court may sua sponte upend, mutate, and essentially rewrite public nuisance statutes, which traditionally are applied to something that interferes with a right common to the general public such as using a road, waterway, or other public area, to overtake and overrule the usual fraud/deception-based tort claims.

Legendary torts professor William Prosser once described “public nuisance” as a “sort of legal garbage can.”  See, e.g., William Prosser, Nuisances Without Fault, 20 Tex. L. Rev. 399, 410 (1942).  Public Nuisance derives from the principle of purpresture, which Black’s defines as the “wrongful appropriation of land subject to the rights of others; an encroachment upon or enclosure of real property (such as highways, sidewalks, or harbors) subject to common or public rights.”  Purpresture comes from the Old French porpresure and porprendre, meaning “to seize, occupy, enclose,” which in turn comes from the Latin prehendere, meaning “to catch.”

Fellow Federalist Scott Keller, firmwide Chairman of Baker Botts’ Supreme Court and Constitutional Law Practice, published an op-ed in the Houston Chronicle entitled “That Huge Opioid Verdict?  Watch Out – The Energy Industry Is Next.”  Scott formerly served as Texas’ Solicitor General and clerked for Justice Kennedy and Judge Kozinski. 

Scott, like many other Texans, possibly might be inclined to make fun of Oklahoma, but the issues he raises in his op-ed, along with the issues raised here, are worth a serious read and serious thought.