Oklahoma’s fight against illegal opioid use could get a mulligan — a re-start after the state Supreme Court properly threw out a $465 million verdict against pharmaceutical maker Johnson and Johnson.
Hopefully, officials now will get it right, because they do have a better avenue to pursue, if they’re humble enough to do it.
A gargantuan number of elected officials had asked the court to uphold the trial court ruling, plus to add an additional $465 million each year for 20 years. That would total $9 billion, which would have funded a multitude of new programs with dollars flowing through state government and down to local governments.
The prospect of spending money without having to take the heat for raising taxes always appeals to lawmakers. It was no surprise that Oklahoma’s governor, Speaker of the House, Senate President Pro Tem, plus 51 counties, 16 cities, college regents, agency board members and many others joined Oklahoma’s attorney general. All of those filed friend-of-the-court briefs that asked the Supreme Court to approve the extra billions.
It was the Oklahoma Gold Rush. A multitude of public officials were willing to sacrifice the core constitutional value of separation of powers among the three branches of government, if that allowed them to pocket their share of the fortune.
And Oklahoma officials were not alone in their readiness to abandon principle. Thirty-one states, plus the District of Columbia, filed friend-of-the-court briefs with Oklahoma’s Supreme Court. They wanted a precedent they could use to persuade other courts to award enormous sums in their states, labeling pharmaceutical makers as villains who must pay. And pay. And pay.
Oklahoma’s Supreme Court, however, noted that prescription opioids are a lawfully sold product, greatly valuable when properly used to relieve crippling levels of pain. The court stressed that drug regulations are “public policy matters that should be dealt with by the legislative and executive branches.” But not by abusing vague public nuisance laws.
The case was part of a nation-wide effort to create liability for sellers of lawful goods by decreeing that their products nevertheless are public nuisances. The Sooner State ruling grabbed national attention because businesses are worried about the “public nuisance monster,” as the U.S. Chamber of Commerce calls it.
The court agreed with concerns that expanding the scope of public nuisance theory could punish many lawful behaviors: “… public nuisance claims could hold manufacturers perpetually liable for their products; … Businesses have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products, i.e., 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.”
While sympathizing about the great harms caused by illegal use of opioids, Oklahoma’s Supreme Court properly deferred solutions to the other branches: “Stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far. This Court defers the policy-making to the legislative and executive branches and rejects the unprecedented expansion of public nuisance law.”
So now what?
In short: Don’t sue. Settle.
While Oklahoma pursued a giant award, 42 other states agreed to a $26-billion settlement with pharmaceutical makers, ending a multitude of these public nuisance lawsuits. That includes most states which had supported the original ruling in Oklahoma.
But by swinging for the fences in its case, Oklahoma missed the September deadline for accepting that settlement offer from multiple drug makers. Only a few other states refused, such as Washington State where a trial began this week in its Oklahoma-like quest to gain $38 billion just for itself, rather than a slice of the $26 billion.
But settlement talks are not completed, especially because efforts continue to persuade local governments to join that agreement with the states.
So, yes, there is a chance.
Quick action is needed, however. Legal drug companies may not remain willing to pay while courts like Oklahoma’s continue to knock down the stretching of legal theories.
The human toll of opioid abuse indeed is staggering. Getting some help to fight it is far better than having Oklahoma end up with nothing.
Former 5th District U.S. Rep. Ernest Istook practices law, writes on public policy and is a distinguished fellow with Frontiers of Freedom.