Hoping to hold accountable pharmaceutical companies for their role in America’s opioid epidemic, some victims have sued them under a theory of “public nuisance.” The doctrine may seem like a reasonable legal tool, but it’s been undermined by ambitious progressive lawyers launching far-fetched causes of action against energy companies or firearms manufacturers for their putative role in causing climate change or violent crime. Fortunately, the Oklahoma Supreme Court has just taken a major step toward limiting the potential consequences of this legal strategy.
In 2019, Oklahoma judge Thad Balkman ruled in favor of the state attorney general in finding that Johnson & Johnson had created a public nuisance through its misleading marketing and promotion of opioids. He ordered the company to pay $465 million in damages in what was one of the most salient public-nuisance litigation victories in recent U.S. history. But a recent 5–1 decision by the Oklahoma Supreme Court reversed Balkman’s ruling, forestalling the establishment of a troubling legal precedent that might have swept the country. One can easily imagine, for example, how an established “public nuisance” legal standard could be applied against a range of private-sector actors—from gun companies to energy suppliers—whose critics blame them for various social problems.
“We hold that the district court’s expansion of public nuisance law went too far,” Justice James Winchester wrote for the majority. “Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.” He rightly added: “In reaching this decision, we do not minimize the severity of the harm that thousands of Oklahoma citizens have suffered because of opioids. However grave the problem of opioid addiction is in Oklahoma, public nuisance does not provide a remedy for this harm.”
Certain pharmaceutical companies should be held responsible for their role in the seemingly interminable opioid epidemic. But victims should take action against them without pursuing a path that could undermine sound jurisprudence. And conservatives tempted down this road should consider that their political and moral interests are likely to be disproportionately at risk if public-nuisance litigation becomes more widely embraced.
In light of the Oklahoma Supreme Court’s recent decision, municipalities and state attorneys general still considering public-nuisance law against Big Pharma would be wise to consider rejoining the $26 billion settlement reached last summer between Johnson & Johnson and three opioids distributors. As the opioid crisis continues to rage—the U.S. just recorded 100,000 drug overdose deaths in a 12-month period for the first time ever—it’s vital that states receive resources to fight the epidemic before it gets even worse.
District attorneys and attorneys general should stop pursuing an abstruse method of legal recourse that could set a dangerous precedent. After all, it’s just been called into question by a state supreme court—in a state with broadly written product-liability and nuisance laws. If prosecutors want to hold bad actors accountable, they have other options.
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