Courts side with drug industry in major opioid rulings, calling into question common public-nuisance lawsuit tactic

Two state courts recently sided with the pharmaceutical industry in opioid epidemic trials that could have brought tens of billions of dollars to states and localities to mitigate the addiction crisis. The rulings call into question the legal underpinning of thousands of similar lawsuits, and could make it more difficult to win large payouts from the drug industry.

On Tuesday, Oklahoma's Supreme Court tossed out a 2019 ruling in an opioid case against Johnson & Johnson worth $465 million. The judges ruled, 5 to 1, that the company can't be held responsible for the state's opioid crisis. "This ruling comes less than two weeks after a state court judge in California sided with drug companies in another major opioid lawsuit," Brian Mann reports for NPR. In the California verdict, the Superior Court ruled that prosecutors hadn't proved that marketing from Allergan, Endo, Johnson & Johnson and Teva caused the opioid epidemic.

Oklahoma prosecutors had argued that Johnson & Johnson created a public nuisance because their marketing strategy for pain pills caused an opioid epidemic. But the state supreme court "concluded the public nuisance law was never intended to address a big public crisis like the opioid epidemic," Mann reports. Public nuisance claims are meant to address "discrete, localized problems, not policy problems," the judges wrote in the ruling, and allowing the law to apply to non-traditional nuisance claims leaves the law "impermissibly vague."

"The rulings raise questions about the legal strategy used by state and local officials, who argue the drug industry should be held liable for fueling the opioid crisis," Mann reports. Thousands of opioid lawsuits across the nation are based on similar public-nuisance claims.

That's because "many state public nuisance laws do not include a statute of limitations, which would restrict the time available to take legal action," Jan Hoffman reports for The New York Times. "The amount of money that can be recovered can be far greater than that exacted in a more conventional tort claim. And in some states, one defendant can be held liable not only for the damages it created but for those of other defendants as well." Also, a defendant found guilty of creating a public nuisance "has to take corrective action and must usually pay substantially to prevent future harm."

It's too early to know if the rulings indicate that public-nuisance arguments are bound to fail, according to University of Richmond opioid litigation expert Carl Tobias. "There are other state and federal opioid cases underway right now in New York, Ohio and West Virginia. Tobias said the public nuisance argument may still hold up in some courts and jurisdictions," Mann reports.

"The opinions could prod cities and counties, many of which have been equivocal about settlement deals brokered by states, to capitulate," Jan Hoffman reports for The New York Times. "They could also fuel the resolve of pharmacy chains, like Walmart, Walgreens and CVS, the cluster of defendants most resistant to talks, to fight even harder."

In July, Johnson & Johnson and drug distributors AmerisourceBergen Corp., Cardinal Health Inc., and McKesson Corp. agreed to a $26 billion settlement in New York for their role in the opioid epidemic.