With billions of dollars and historic legal precedent on the line, attorneys nationwide are paying close attention to Oklahoma’s ongoing public nuisance trial against opioid manufacturer Johnson & Johnson.
The verdict that comes out of Judge Thad Balkman’s Cleveland County courtroom, although likely to be appealed no matter the ruling, is expected to impact more than 1,600 city, county and local municipality lawsuits against opioid manufacturers that have all consolidated before a federal judge in Ohio.
Cleveland jurors will hear arguments in two of these lawsuits during a bellwether, or test, trial scheduled for Oct. 21. U.S. District Judge Dan Polster is encouraging plaintiffs and drug manufacturers to reach a settlement quickly.
A win for Oklahoma — complete with a large payout from Johnson & Johnson — would give plaintiffs involved in this multidistrict litigation increased bargaining power in settlement negotiations.
A defense victory could embolden the drugmakers to fight more cases in an attempt to cut back on their losses, according to University of Kentucky law professor and liability law expert Richard Ausness.
“However it turns out, the Oklahoma trial is a bellwether that gives some indication as to where these other cases are going,” he said. “Both sides are going to be watching it with great interest.”
While every state but Nebraska is pursuing some kind of legal action against opioid manufacturers, Oklahoma was the first to reach the trial stage. Attorney General Mike Hunter alleges Johnson & Johnson caused a public nuisance by using deceptive opioid marketing techniques that led to a statewide health epidemic.
Originally expected to try three drug companies, Oklahoma settled with Purdue Pharma for $270 million on March 26 and Teva Pharmaceuticals for $85 million two months later.
Legal questions
Opioid litigation arose around the turn of the century, when some people addicted to the painkillers unsuccessfully sued drug makers.
About a decade later, local governments seeking monetary relief to combat opioid addiction in their region started filing lawsuits against drug manufacturers. Several of these claims are now part of the multidistrict litigation in Ohio.
It remains to be seen if a public nuisance argument against drugmakers in a trial setting can be successful, according to Ausness. Lawyers in the 1990s won large settlements from tobacco companies using the claim, but were unsuccessful arguing public nuisance against firearms and lead paint makers.
“Even though I think public nuisance is a weak theory, it resonates well,” Ausness said. “Anybody can be negligent, but only really bad people can commit public nuisances. That’s sort of the way it looks to somebody who isn’t an expert in the area.”
A former opioid addict turned church pastor, as well as family members of an OU football player who died from an opioid overdose, were among the state witnesses called during the first two weeks of the trial. While their testimony may have been powerful, its relevance is questionable, according to Ausness. To win a public nuisance argument, a plaintiff must establish that a collective public right has been violated and the defendant had control over the offending activity or condition.
“Bringing in people who were addicted and whose relatives were addicted, it doesn’t really go to any of the elements of a public nuisance,” he said. “After all, the state is suing for economic loss and not personal injuries. I don’t want to criticize the parties, because I have not been following the trial on a day-to-day basis, but it sounds like while the state has been vigorous, they may not be persuasive at this point.”
Johnson & Johnson could also be bolstered by a recent court ruling in favor of an opioid manufacturer in North Dakota. On May 16, a North Dakota judge dismissed a state lawsuit seeking damages against Purdue Pharma, saying the drug maker does not control the product after it enters the market.
“At the very least, the North Dakota ruling provides opioid defendants some leverage in settlement negotiations,” product liability attorney Cameron Turner said in an opinion piece on Law360.com. “Even if they proceed to trial and take an adverse verdict, they now have a potentially dispositive appellate argument that has been accepted by at least one judge.”
A similar ruling occurred in January, when Connecticut Judge Thomas Moukawsher dismissed lawsuits brought against Purdue Pharma by 37 cities and towns in the state. Moukawsher claimed the plaintiffs could not directly show that Purdue caused the opioid problem in their region.
“They (opioid manufacturers) really haven’t lost a case yet. It’s sort of 2-0 at this point,” Ausness said. “I think a victory for the defendants in the Oklahoma case would perhaps be more significant than a victory for the plaintiffs. Nobody likes to lose, but I think they would say we won a few, so now we can afford to lose a few.”
Potential outcomes
Johnson & Johnson’s low overall opioid market share in Oklahoma, combined with the fact that the case is being tried in front of a judge rather than a jury, limits the likelihood of a substantial judgment should Balkman rule in favor of the state, according to Ausness.
“Trial judges can be political, but I think they’re a little less swayed by the emotional stuff that is certainly being generated by the plaintiffs in this case,” he said.
In April, Balkman ruled he, not a jury, would decide the case. Hunter requested a bench trial on the basis that the state is not seeking monetary damages, but rather equitable relief, and therefore is not entitled to a jury trial. Drug manufacturers were mixed on the issue.
While this case may soon influence settlement amounts in Ohio as well as legal strategy in trial cases against drug makers, the battle won’t stop once Balkman delivers a verdict later this summer.
“Whichever way it goes, the losing side is going to appeal,” Ausness said. “There are no intermediate courts in Oklahoma, so it’ll go right to the Oklahoma Supreme Court. So who knows when they’ll render a decision. It’s going to take awhile for the full effect of the case to be realized.”
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