Oklahoma Supreme Court tosses $465 million opioid award against J&J

The Oklahoma Supreme Court threw out a $465 million opioid award against Johnson & Johnson after finding that a judge wrongfully concluded the drugmaker violated state law with its marketing campaigns.

The state’s highest court on Tuesday ruled that Judge Thad Balkman misconstrued Oklahoma’s public nuisance law in ruling in 2019 that J&J’s marketing of its painkillers helped fuel the state’s opioid epidemic. He concluded that J&J should pay hundreds of millions to fund treatment and other social services programs. Oklahoma is one of many states and municipalities that have sued opioid makers such as J&J under public nuisance law, accusing them of fueling an epidemic that is killing more than 100 Americans a day.

Tuesday’s ruling was the pharmaceutical industry’s second recent win in the sprawling, four-year litigation over opioids. Last week, J&J, Teva Pharmaceutical Industries Ltd, and other drugmakers defeated a lawsuit by local governments in California that claimed the companies created a public-health crisis through misleading marketing of their drugs.

In a statement, J&J expressed sympathy for those affected by the opioid crisis but maintained that its marketing was appropriate and responsible.

“Today, the Oklahoma State Supreme Court appropriately and categorically rejected the misguided and unprecedented expansion of the public nuisance law as a means to regulate the manufacture, marketing, and sale of products, including the company’s prescription opioid medications,” J&J spokesman Jake Sargent said.

A spokesperson for Oklahoma Attorney General John O’Connor didn’t immediately return a call for comment.

The Oklahoma suit was the first alleging public nuisance law violations to result in a jury verdict. Such claims allow the governments to make their case without having to prove individual doctors were lured by drugmakers, distributors or pharmacies into over-prescribing opioid painkillers. Instead, they can use experts to show the companies’ marketing as a whole was deceptive and led to a jump in addictions and often fatal overdoses.

Judge Peter Wilson in California concluded Nov. 2 that four municipalities couldn’t prove J&J and other opioid makers created a public nuisance with their opioid marketing and sales tactics. Wilson said the plaintiffs’ evidence of a huge jump in the number of opioid prescriptions over a decade didn’t meet the state’s public-nuisance test.

It was the first time a judge or jury rejected claims by states or local governments that former opioid makers should be held liable for the fallout from the U.S. opioid epidemic, which has claimed the lives of almost 500,000 Americans over the last two decades.

Juries in Ohio federal court and New York state court are still hearing evidence in suits seeking billions of dollars in compensation from opioid makers and pharmacies accused of creating public nuisances. West Virginia municipalities are awaiting the ruling of a federal judge who heard the public-nuisance case against McKesson Corp.

Richard Ausness, a University of Kentucky law professor who follows the opioid litigation, said he wasn’t surprised by the Oklahoma Supreme Court’s ruling.

“I’ve never had much confidence in the PN theory,” he said in an interview of the public nuisance findings. “I think PN is concerned historically with activities that harm land and trying to expand it to something like this” isn’t appropriate.

“I think it draws the whole public nuisance approach for opioids into question,” Ausness added.