On November 9, 2021, the Oklahoma Supreme Court set aside a $465 million verdict against Johnson & Johnson (J&J) in State ex rel. Hunter v. Johnson & Johnson, 2021 OK 54. In 2017, the State of Oklahoma sued three opioid manufacturers, including J&J, alleging the companies deceptively marketed opioids in the state. At trial, only J&J and the claim of public nuisance remained. At the end of a 33-day bench trial, the district court ordered J&J to pay $572 million, representing funding for one year of Oklahoma's opioid abatement plan. Our previous report on the district court award can be found here. Due to a calculation error in the original award, the district court award was subsequently reduced to $465 million. According to the district court, J&J was liable under Oklahoma's public nuisance statute for conducting false, misleading, and dangerous marketing campaigns about prescription opioids.
Public Nuisance Statute
In overturning the district court's ruling, the Oklahoma Supreme Court's reasoning on appeal was simple - the State has never extended its public nuisance statute to the manufacturing, marketing, or selling of products. The Court laid out Oklahoma's nuisance statute as follows:
"A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: First, annoys, injures or endangers the comfort, repose, health, or safety of others; or Second, offends decency; or third, unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or fourth, in any way renders other persons insecure in life, or in the use of property, provided, this section shall not apply to preexisting agricultural activities."
First, the Court explained that Oklahoma's public nuisance statute does not cover the State's alleged harm. The State essentially argued J&J had a duty to warn or to make safe, seemingly sounding in product liability, not public nuisance. The Court reasoned that public nuisance is ill-suited to resolve claims against product manufacturers. In doing so, the Court identified three main counterpoints: (1) the manufacture and distribution of products rarely cause a violation of a public right, (2) a manufacturer does not generally have control of its product once it is sold, and (3) a manufacturer could be held perpetually liable for its products under a nuisance theory. To the Court's first point, the manufacturing and distribution of products fail to cause a violation of public right because a public right is more than an aggregate of private rights by a large number of injured parties. Second, J&J had no control over the use of its products by distributors, wholesalers, pharmacies, hospitals, or physicians. Nor does J&J have control over the regulation of prescription opioids. Finally, holding a product manufacturer liable in public nuisance would allow claimants to sidestep applicable statutes of limitations and shift the focus from manufacturing a product to the product's continued presence in the marketplace.
The Court explained its unwillingness to extend Oklahoma public nuisance law to veiled products liability cases. Simply put, doing so would allow almost every products liability action to be converted into a public nuisance claim. The Court identified and seemingly agreed with the growing national trend of limiting public nuisance claims to land or property use.
Insights
The Oklahoma Supreme Court's decision bodes well for product manufacturers. Oklahoma joins the national trend of rejecting roundabout product liability claims brought under the guise of public nuisance. Control over the alleged nuisance has always been at the center of public nuisance law and public nuisance must concern a public right, not the consolidation of many private rights. Product liability plaintiffs must bring product liability claims and must do so while satisfying the applicable statutes of limitations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
JOHNSON & JOHNSON 
