The Oklahoma Supreme Court on Tuesday set an example for other courts to stop trying the wrong way to cure the opioid epidemic.
The Sooner State’s high court determined that the expansion of a legal theory known as “public nuisance” was the lawsuit equivalent of snake oil, doing more harm than good, much like Rhode Island’s court decided not long ago in a case involving lead paint. Both courts are right.
Public nuisance laws generally apply to misuse or obstruction of property that endangers the public. For example, if you build a dam on your property and it floods your neighbor’s property, you may be creating a public nuisance. If you build a factory that fills everyone’s air with soot, you might have created a public nuisance.
In recent years, liberal lawyers have tried to apply these laws more broadly to any conduct — not just property-related, but also related to the manufacture of products — that endangers the public at large, and for which a representative of government, rather than a private plaintiff, must sue to secure punitive relief.
A federal district judge in Ohio, for example, has been pressing pharmacies to pay settlements of billions of dollars for filling otherwise legal painkiller prescriptions, on the theory that the pharmacies created a nuisance by filling those prescriptions. And the Justice Department has been suing Walmart for the same thing. This is patently unfair, considering that many states suspend the licenses of pharmacists who refuse to fill valid prescriptions. Indeed, 13 states are threatening action against Walmart for just that “offense.” Walmart is damned if it does fill the prescriptions and damned if it doesn’t.
The Oklahoma case is slightly different, but the same public nuisance theory is involved. Instead of the pharmacies being under the gun, the target is the drug manufacturer Johnson & Johnson, which produces a legal medicine that for millions and millions of sufferers relieves awful pain from serious injuries and ailments such as cancer.
Cleveland County District Judge Thad Balkman ordered J&J to pay $465 million for projects to mitigate the epidemic of addiction. The state’s highest court, however, overturned that decision. Writing for five of the court’s six jurists, Judge James Winchester wrote that “the district court’s expansion of public nuisance law went too far.” Public nuisance law pertains to property disputes, not to general remedies for widespread social problems.
“Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling” of pharmaceuticals or, presumably, other products that are made and distributed in compliance with existing law. Responsible manufacturers and law-abiding merchants should not be responsible for harm that occurs downstream from their involvement.
Otherwise, Winchester asked rhetorically, “will a sugar manufacturer or the fast-food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution?”
The opioid problem, he wrote, is a matter to be dealt with by changes in public policy — by the legislative and executive branches — not by courts trying to apply some sort of karmic “justice” divorced from the actual text of existing laws.
Alas, this ruling is binding only in Oklahoma. Other states surely have different statutory definitions of public nuisance. Still, the logic of the Oklahoma Supreme Court is right on target in ways that conceptually should inform other judges, state and federal, facing these sorts of issues. Opioid abuse is a serious and widespread public problem, but the source of the pain is not the company whose product is still, for far more people than not, far less a curse than a blessing.
