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Thousands of Opioid Lawsuits Jeopardized After Recent Court Decisions?

By Joseph Fawbush, Esq. | Last updated on

A recent Oklahoma Supreme Court decision may spell trouble for thousands of opioid lawsuits across the country.

In 2019, Oklahoma's attorney general sued three opioid distributors for their role in cultivating the opioid crisis. The state sought to recover under the theory that these manufacturers violated the state's public nuisance laws in creating a public health hazard.

The jury agreed with the state and held one defendant, Johnson & Johnson, liable in the amount of $465 million (the two other defendants settled before trial). But the Oklahoma Supreme Court overturned the verdict on November 9, 2021. The court held that the state's public nuisance law was incorrectly applied to the case.

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The trial in Oklahoma was the first large recovery alleging a violation of public nuisance laws, but thousands of subsequent lawsuits have made similar claims in state courts across the country. Alongside a recent similar case out of California, the Oklahoma Supreme Court has put the viability of such lawsuits in serious doubt.

Public Nuisance Laws Applied to the Opioid Crisis

Many parts of the U.S. remain in the grip of the opioid crisis. In 2019 alone, the last year for which we have data, close to 50,000 Americans died from an opioid overdose. These opioid overdoses accounted for 72% of all overdose deaths in the country. There are signs that the risk of use and overdose has only increased in the wake of the pandemic. Opioid abuse is clearly a major problem, but how do public nuisance laws come into play?

Public nuisance laws are intended to prevent behavior that can affect the health, safety, and comfort of the public. According to the Oklahoma Supreme Court, however, public nuisance laws are geared toward behaviors that affect the rights of the public to access “an indivisible resource . . . like air, water, or public rights-of-way."

In the Johnson & Johnson decision, by contrast, the drug manufacturer was providing a legal product that, whatever its risks, is prescribed for its medicinal value. As Justice James Winchester explained, the court feared that holding J&J responsible for selling and distributing a legal product could set a precedent that would make “manufacturers, distributors, and prescribers potentially liable for all types of use and misuse of prescription medications."

In essence, the justices were concerned that expanding the reach of the state's public nuisance law would make product manufacturers and distributors liable for harm “regardless of the defendant's degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort."

Opioid Lawsuits Will Continue

Despite the serious doubt regarding whether states can recover under public nuisance laws, opioid manufacturers and distributors are not off the hook. Suits under product liability laws, including allegations that opioid manufacturers and distributors failed to warn consumers about the dangers they knew existed regarding opioid use, remain ongoing. In addition, it is important to remember that public nuisance laws vary from state to state; other state supreme courts may hold differently than the Oklahoma Supreme Court.

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