In Oklahoma ex rel. Hunter v. Johnson & Johnson, the Oklahoma Supreme Court overturned a $465 million verdict against Johnson & Johnson (J&J) after the district court found J&J liable for violating Oklahoma’s public nuisance law when it manufactured, marketed, and sold prescription opioids.[1] The Supreme Court, in a 5-1 ruling, held that the state’s public nuisance statute, which historically has governed local land-based disturbances, does not apply to manufacturing, marketing, and selling products.[2] In lone dissent, Justice James Edmondson found that the state’s public nuisance law covers manufacturing-related acts and argued that the majority read the statute too narrowly.[3]

Governments around the country have been seeking to use public nuisance causes of action to subject manufacturers to liability for a variety of social, environmental, and public health issues associated with products. The Oklahoma Supreme Court is now one of several state supreme courts to reject this use of public nuisance law.[4]

Background

The state of Oklahoma brought this lawsuit to make prescription opioid manufacturers pay the state’s costs associated with opioid addiction in Oklahoma.[5] Like other states, Oklahoma has experienced an opioid epidemic, including “abuse and misuse of opioid medications, opioid use disorder, and thousands of opioid-related deaths.” [6]

In June 2017, Oklahoma sued three pharmaceutical companies that manufactured, marketed, or sold opioids in Oklahoma: J&J, Purdue Pharma L.P. (Purdue), and Teva Pharmaceuticals USA, Inc. (Teva).[7] The state invoked Oklahoma’s public nuisance statute, asserting that opioid abuse qualified as a public nuisance and the companies created this public nuisance in how they marketed their medications.[8] The state sought funds to abate this “nuisance,” which it said was the costs of treating opioid abuse on a yearly basis.[9]

The state settled with Purdue (for $270 million) and Teva (for $85 million).[10] J&J defended itself against the public nuisance claim, arguing Oklahoma’s public nuisance law, which historically has governed a variety of local land-based disturbances, does not apply to the manufacturing, marketing, or selling of a lawful product.[11]

The state countered that the language in its public nuisance statute was broad enough to cover these acts. The statute defines a “nuisance” as consisting of “unlawfully doing an act, or omitting to perform a duty, which act or omission . . . annoys, injures or endangers the comfort, repose, health, or safety or others,” among other things.[12] The state argued manufacturing, marketing and selling a product that endangers the health or safety of others could qualify as a public nuisance.[13]

Other governments have similarly tried to use their states’ public nuisance law in this way. For example, they have sued firearm manufacturers for the criminal misuse of guns, former manufacturers of lead pigment for lead paint in homes, and energy producers for local effects of climate change.[14] Most of these lawsuits have ultimately failed, as courts have held that public nuisance law does not subject manufacturers to liability for these types of harms.[15]

Oklahoma’s case against J&J was the first opioid-manufacturing lawsuit in the nation to proceed to trial. The district court held a 33-day bench trial to determine whether J&J was responsible for creating a public nuisance under Oklahoma law by manufacturing, marketing, and selling opioid medications.[16] The state alleged that J&J engaged in a marketing campaign to spread the concept that physicians were undertreating pain.[17] The state also argued that J&J overstated the benefits of opioid pain management while failing to disclose the risks.[18] The parties called 42 witnesses, submitted 874 exhibits into evidence, and presented an additional 225 exhibits to the court.[19]

The trial concluded in July 2019, and the district court issued a $465 million verdict, which represented the state’s costs for one year.[20] J&J appealed, again arguing that Oklahoma’s public nuisance law cannot be used to impose liability on the company for costs associated with opioid misuse. Subjecting manufacturers to such liability, particularly for a product approved and regulated by the U.S. Food & Drug Administration, would expand public nuisance litigation beyond its original moorings.[21] The state cross-appealed for approximately $9.3 billion.[22]

The Court’s Opinion

The Oklahoma Supreme Court held that “Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.”[23] “The central focus of the State's complaints is that J&J was or should have been aware and that J&J failed to warn of the dangers associated with opioid abuse and addiction in promoting and marketing its opioid products. This classic articulation of tort law duties--to warn of or to make safe--sounds in product-related liability. Public nuisance and product-related liability are two distinct causes of action, each with boundaries that are not intended to overlap.”[24]

The Oklahoma Supreme Court looked to the origins of the statute, which codified longstanding common law. Public nuisance originated in twelfth-century England as “a criminal writ to remedy actions or conditions that infringed on royal property or blocked public roads or waterways.”[25] The king could bring a public nuisance claim to protect the public’s right to use these public resources.[26] The remedies were either injunctive relief to stop the person from engaging in the public nuisance and/or abatement to make the person clean up his or her mess.[27] Over time, public nuisance law “came to cover a large, miscellaneous and diversified group of minor criminal offenses,” such a pollution or vagrancy, that infringed on a public right in a local community.[28] As the court explained, the cause of action “has historically been linked to the use of land by the one creating the nuisance.”[29]

For this reason, the court continued Oklahoma has “limited Oklahoma public nuisance liability to defendants (1) committing crimes constituting a nuisance, or (2) causing physical injury to property or participant in an offensive activity that rendered the property uninhabitable.”[30] “Applying the nuisance statutes to lawful products as the State requests would create unlimited and unprincipled liability for product manufacturers; this is why our Court has never applied public nuisance law to the manufacturing, marketing, and selling of lawful products.” [31]

The court then gave several reasons public nuisance law does not extend to manufacturers for the use or misuse of products. First, there is no public right to be free from opioid addiction, and any public nuisance caused by opioid abuse would occur at the local, not manufacturing level.[32]

Second, the manufacturer does not control its products once sold: they have no “control [over] the instrumentality alleged to constitute the nuisance at the time” the nuisance is created.[33]

Third, tort liability must be principled and limited, and applying public nuisance to downstream impacts of products would raise “the possibility that J&J could be held continuously liable.”[34]

Finally, the court held that the remedy—$465 million for public funds spent on opioid addiction—is not the type of remedy that applies to public nuisance claims; it was neither injunctive relief to stop the public nuisance nor an abatement order: “The condition, opioid use and addiction, would not cease to exist even if J&J pays for the State's Abatement Plan.”[35]

The court also said the remedy was improper because it was not right to make J&J pay for the alleged costs of treating all prescription opioids manufactured, marketed, or sold in the state given that J&J sold 3% of prescription opioids statewide. [36] “J&J should not be responsible for the harms caused by opioids that it never manufactured, marketed, or sold.”[37]

The Dissent

Justice Edmondson issued the lone dissent. He argued the majority’s view of public nuisance is “too narrow.”[38] He stated that the public nuisance statute provides a cause of action in “equity” and, therefore, could be extended to the manufacturing, marketing, and selling of opioid products in this case: “our society's concept of equity includes the idea that a defendant should be held legally responsible for damages proximately caused by that defendant and not others.”[39]

He contended a property-based nexus “is not always a required element in a public nuisance common-law action.”[40] “[A] common-law public nuisance may be created using a chattel or personal property as a means or instrument which causes an injury to a public right, and this type of action has been incorporated into our nuisance statute.”[41] He continued that the fact that improperly manufacturing, marketing, and selling products may give rise to a product liability claim does not mean these acts cannot also give rise to a public nuisance action.[42]

In his view, “J&J’s directed use of their personal property or goods in Oklahoma commerce, when combined with J&J's false and misleading safety representations of those goods, constitutes a public nuisance when those misrepresentations are causally linked to harm suffered by the public in Oklahoma and resulting in expenditures from the Public Purse.”[43]

However, he disagreed with the trial court on two issues: the trial must be tied to conduct and damages in Oklahoma, and the remedy was really one for damages for past conduct. He would have sent the case to the lower court to focus on evidence tied to Oklahoma and “to recalculate damages based upon J&J’s share of the market in the years it sold its opioids in Oklahoma.”[44]

Conclusion

The Oklahoma Supreme Court’s decision adds to the jurisprudence that manufacturers are not to be subject to public nuisance liability for social, environmental, or public health issues associated with the use or misuse of products. The elements of a public nuisance cause of action—a public right, unlawful conduct, causation and control—are not present in these cases. The case could impact opioid litigation in other states, as well as other efforts to assert public nuisance claims against manufacturers of other products that have downstream risks.


[1] Oklahoma ex rel. Hunter v. Johnson & Johnson, 2021 WL 5191372 (Okl. Sup. Ct. Nov. 9, 2021).

[2] Id. at *11.

[3] Id. at *14-15, 27.

[4] See State of R.I. v. Lead Indus. Ass’n, 951 A.2d 428 (R.I. 2008) (overturning verdict and rejecting district court’s efforts to extend public nuisance to lead paint manufacturing); In re Lead Paint Litig., 924 A.2d 484 (N.J. 2007) (same); City of Chicago v. Beretta U.S. A. Corp., 821 N.E.2d 1099 (Ill. 2005) (declining to apply nuisance theory to firearms manufacturing).

[5] 2021 WL 5191372 at *2, n. 12.

[6] This fact was never in dispute. See Oklahoma ex rel. Hunter v. Purdue Pharma L.P., et al., 2019 WL 9241510 at *1 (Okl. Dist. Nov. 15, 2019) (Final Judgment After Non-Jury Trial).

[7] 2021 WL 5191372 at *2.

[8] See Okla. Stat. tit. 50, §§ 1 et seq.

[9] 2019 WL 9241510 at *1.

[10] 2021 WL 5191372 at *2, n. 11.

[11] Id. at *2-3.

[12] Okla. Stat. tit. 50, § 1.

[13] 2021 WL 5191372 at *2.

[14] See Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541, 543 (2006).

[15] Id. at 552-61.

[16] 2021 WL 5191372 at *2.

[17] Id.

[18] Id.

[19] 2019 WL 9241510 at *1.

[20] See id.; see also State of Oklahoma v. Purdue Pharma L.P., et al., 2019 WL 4019929 (Okl. Dist. Aug. 26, 2019) (Judgment After Non-Jury Trial). 

[21] See Oklahoma ex rel. Hunter v. Johnson & Johnson, No. 118,474, Apps.’ Br. (Oct. 8, 2020); see also Br. for Amicus Curiae National Association of Manufacturers, at *10-11 (Oct. 19, 2020) (explaining that the district court’s “framing opioid litigation under government public nuisance theory… blur[s] traditional liability law and… seek[s] to subject [market participants] to joint and several liability,” creating the threat of massive and unpredictable liability in the marketplace).

[22] 2021 WL 5191372 at *3.

[23] Id. at *2.

[24] Id. at *5.

[25] Id. at *3.

[26] Id.

[27] Id.

[28] Id. at *4 (citing Restatement (Second) of Torts § 821B cmt. b (Am. Law Inst. 1979)).

[29] Id.

[30] Id.

[31] Id. at *5.

[32] Id. at *6-7.

[33] Id. at *8-9 (“J&J ultimately could not control: (1) how wholesalers distributed its products, (2) how regulations and legislation governed the distribution of its products by prescribers and pharmacies; (3) how doctors prescribed its products, (4) how pharmacies dispersed its products, and (5) how individual patients used its product or how a patient responded to its product, regardless of any warning or instruction given.”).

[34] Id. at *8-9 (citing Tioga Public Sch. Dist. No. 15 of Williams Cnty., State of North Dakota v. United States Gypsum Co., 984 F.2d 915 (8th Cir. 1993)).

[35] Id. at *9.

[36] Id. at *2.

[37] Id. at *9.

[38] Id. at *27.

[39] Id. at *13.

[40] Id. at *14.

[41] Id.

[42] Id.

[43] Id.

[44] Id. at *12, *27.

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