One of the defenses raised by the defendants, that their marketing activities were protected under the First Amendment, was rejected by the court.
On August 26, 2019, Cleveland County, Oklahoma, District Judge Thad Balkman delivered his highly anticipated ruling in the state of Oklahoma’s lawsuit against certain pharmaceutical companies responsible for manufacturing and marketing prescription opioid medications. Because the other pharmaceutical companies named in the state’s case settled with the Attorney General’s Office earlier this year, Johnson & Johnson and its subsidiary Janssen Pharmaceuticals remained the primary subjects of the evidence at trial and the focus of the attention surrounding Judge Balkman’s then-forthcoming ruling.
As Judge Balkman stated in the published judgment, the defendants knowingly and misleadingly marketed their highly addictive prescription opioids, and by doing so caused harm for which the state could seek redress, as their “actions annoyed, injured, or endangered the comfort, repose, health or safety of Oklahomans.” (Following the judge’s ruling, Johnson & Johnson announced that it would appeal the court’s ruling and the civil judgment discussed below.)
While Oklahoma is certainly not the only state dealing with the opioid epidemic, it has been particularly hard-hit by the scourge: As Judge Balkman remarked, more than 236 million opioid pills were dispensed to Oklahoma residents in 2015—“enough for every adult to have 110 pills.” What’s more, Oklahoma had the most dispensed prescription fentanyl—a narcotic sold under numerous brand names—per capita. Yet, as it relates to the nationwide struggle more generally, the case served as something of a bellwether trial, eagerly watched by both the pharmaceutical industry and state attorneys general around the country as a test for gauging how this hot-button public policy issue would play out in court.
While the facts and named defendants in the Oklahoma case are already—or will undoubtedly become—replicated in litigation throughout the country, one unique aspect of this case may not: the cause of action alleged by the state of Oklahoma. In bringing its action against the drug manufacturers, the attorney general alleged that the pharmaceutical companies had violated Okla. Stat. tit. 50, § 1, et seq., Oklahoma’s public nuisance law. Having identified the sort of harms produced by the opioid epidemic in Oklahoma, Judge Balkman made clear his position that “[t]here can be no question that this nuisance affects entire communities, neighborhoods, or a considerable number of persons,” quoting from 50 O.S. §2.
One of the defenses raised by the defendants, that their marketing activities were protected under the First Amendment, was rejected by the court on the grounds that the marketing “was clearly commercial speech,” afforded a lesser degree of protection than private speech. The defendants also argued that the state had not, and could not, establish the “causation” element of its public nuisance claim; in particular, they argued, because Johnson & Johnson’s opioid sales accounted for only 1 percent of the total opioid sales in Oklahoma. Yet the court rejected this defense, explaining—despite the market share figures—that there were “no intervening causes that supervened or superseded” the defendants’ acts as a direct cause of the injuries to the state.
To remedy the harms caused by the defendants, Judge Balkman ordered the defendants—now only Johnson & Johnson and Janssen—to pay more than $572 million. It is worth noting that whereas the state had sought an award equivalent to roughly $17 billion for a multiyear abatement plan—designed to “abate” the nuisance caused by the defendants’ conduct—the court opted to order the payment of the cost of one year of the abatement plan, calculated to be $572,102,028.
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