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The judge, who ruled Johnson & Johnson for $ 465 million, allowed a “new breed of super tort” in the application of Oklahoma’s public harassment law to the state’s opioid crisis, so the US Chamber of Commerce in a lawsuit this week.
The unprecedented finding, if upheld, would “engulf all of Oklahoma’s tort law,” according to the Chamber and the American Tort Reform Association in a joint amicus letter filed Tuesday in the Oklahoma Supreme Court and ruled on Tuesday November 15 reviewed by Judge Thad Balkman of Cleveland District Court.
“Although the state pretended to be suing for” public harassment, “it was in fact advocating a new breed of super tort,” wrote Robert Vartabedian, attorney at Alston & Bird of Fort Worth, Texas, in the group’s Amicus letter. “It bears no resemblance to the public harassment the courts have recognized in the eight centuries since the claim appeared in common law.”
Over the past few decades, plaintiffs’ attorneys have partnered with multiple states, cities and counties to pursue public harassment claims against manufacturers of tobacco, lead paint and guns, oil companies responsible for climate change, and fast food companies responsible for the obesity epidemic do. However, most of the judges did not allow these cases.
Opioid companies now face similar demands.
“AG Hunter’s opioid lawsuit and ruling last summer dramatically expanded the public harassment law and created great concern for manufacturers of all products,” said Tiger Joyce, president of ATRA, who advised Oklahoma last year on the opioid in his Judicial Hellholes report “had recorded judgment. “The fear now is that other industries, including Oklahoma’s own oil and gas producers, may be targeting similar public harassment on issues like climate change.”
The National Association of Manufacturers, in a separate report filed on Monday, warned against holding manufacturers liable for the “downstream risks” of products legally sold in the market.
“Otherwise, any company trading in a category of product with inherent risks could face massive industry-wide liability at the request of a prosecutor,” wrote Bill O’Connor of Hall, Estill, Hardwick, Gable, Golden & Nelson of Tulsa, Oklahoma.
A third group, the Goldwater Institute, in an October 14 amicus letter, raised concerns about the protection of freedom of speech by Johnson & Johnson under the first amendment and the ability of patients to receive pain medication.
Johnson & Johnson, a drug company and the sole defendant in the trial, filed its opening letter on October 8, challenging the “novel and limitless theory of” harassment liability “” in the trial.
Oklahoma Attorney General Mike Hunter, who filed for $ 17.5 billion over 30 years, plans to file his own appeal.
Earlier this year, Hunter initiated legal proceedings against three of the largest opioid distributors: McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp.
His office completed settlements with other companies related to the opioid crisis for $ 363 million, including $ 8.75 million with Endo Pharmaceuticals earlier this year. Last year, he made $ 85 million in sales with Teva Pharmaceuticals and $ 270 million in sales with Purdue Pharma, which has since filed for Chapter 11 bankruptcy protection.
On Wednesday, Purdue Pharma announced that it had entered into a $ 8 billion deal with the U.S. Department of Justice that incurred both criminal and civil penalties, despite state attorneys general saying they would continue their lawsuits against the opioid maker follow.
In a lawsuit last year in Norman, Oklahoma, the office of Hunter, Johnson & Johnson and its subsidiary Janssen Pharmaceuticals created a public nuisance when they oversupplied opiate drugs in the state, resulting in massive deaths and addictions. Johnson & Johnson’s aggressive marketing of its opioids led doctors, hospital staff, and others to believe that the pain relievers may be non-addictive and may be useful as long-term pain relief.
Johnson & Johnson attorneys raised the widespread abuse of its prescription pain medication, approved by the US Food and Drug Administration. Their products also come with warning labels, one of several factors that influence doctors’ decisions about prescribing opiate pain relievers.
Balkman’s ruling follows the only opioid ruling in the nation. The judge cut his original $ 572 million award due to a math error.
On appeal, Johnson & Johnson and the corporate groups behind it pointed out that the company had sold 3% of all opioids in Oklahoma, making its 100% liability unconstitutional.
Regarding public harassment, the only allegation in this case, they found that the law originated in cases involving land and property, not social grievances.
“The court ignored that story and turned public harassment into a super-illicit act that subjects Oklahoma companies to absolute liability for a wide range of public issues far removed from traditional public harassment,” Vartabedian wrote. “Instead of asking for a legislative solution to a legislative problem, the court has bypassed the democratic process and given the judiciary political decision-making powers to find its own solution to the opioid crisis.”