State ex rel. Hunter v. Johnson & Johnson

Citation499 P.3d 719
Decision Date09 November 2021
Docket NumberNo. 118,474,118,474
Parties STATE of Oklahoma EX REL. Mike HUNTER, Attorney General of Oklahoma, Plaintiff/Appellee/Counter-Appellant, v. JOHNSON & JOHNSON ; Janssen Pharmaceuticals, Inc.; Ortho-McNeil Janssen Pharmaceuticals, Inc., n/k/a Janssen Pharmaceuticals, Inc.; and Janssen Pharmaceutica, Inc., n/k/a Janssen Pharmaceuticals, Inc., Defendants/Appellants/Counter-Appellees, and Purdue Pharma L.P. ; Purdue Pharma, Inc. ; the Purdue Frederick Company; Teva Pharmaceuticals USA, Inc. ; Cephalon, Inc.; Allergan, PLC, f/k/a Actavis, PLC, f/k/a Actavis, Inc., f/k/a Watson Pharmaceuticals, Inc. ; Watson Laboratories, Inc.; Actavis LLC; and Actavis Pharma, Inc., f/k/a Watson Pharma, Inc., Defendants.
CourtSupreme Court of Oklahoma

Mike Hunter, Attorney General for the State of Oklahoma, Abby Dillsaver, General Counsel to the Attorney General, and Ethan A. Shaner, Deputy General Counsel, Oklahoma Office of the Attorney General, Oklahoma City, Oklahoma, for Plaintiff/Appellee/Counter-Appellant.

Michael Burrage, Reggie Whitten, and Randa K. Reeves, Whitten Burrage, Oklahoma City, Oklahoma, for Plaintiff/Appellee/Counter-Appellant.

Bradley E. Beckworth, Lisa Baldwin, and Nathan B. Hall, Nix Patterson, LLP, Oklahoma City, Oklahoma, for Plaintiff/Appellee/Counter-Appellant.

John Thorne, Brendan J. Crimmins, and Ariela M. Migdal, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C., for Plaintiff/Appellee/Counter-Appellant.

Larry D. Ottaway, Amy Sherry Fischer, and Andrew M. Bowman, Foliart, Huff, Ottaway & Bottom, Oklahoma City, Oklahoma, for Defendants/Appellants/Counter-Appellees.

Andrew W. Lester and A.J. Ferate, Spencer Fane LLP, Oklahoma City, Oklahoma, for Defendants/Appellants/Counter-Appellees.

Benjamin H. Odom, John H. Sparks, and Michael W. Ridgeway, Odom & Sparks, PLLC, Norman, Oklahoma, for Defendants/Appellants/Counter-Appellees.

Charles C. Lifland and Jonathan P. Schneller, O'Melveny & Myers, LLP, Los Angeles, California, for Defendants/Appellants/Counter-Appellees.

Stephen D. Brody, O'Melveny & Myers, LLP, Washington, D.C., for Defendants/Appellants/Counter-Appellees.

Jeffrey L. Fisher, O'Melveny & Myers, LLP, Menlo Park, California, for Defendants/Appellants/Counter-Appellees.

Winchester, J.

¶1 An opioid drug epidemic exists in the United States. Oklahoma has experienced abuse and misuse of opioid medications, opioid use disorder, and thousands of opioid-related deaths in the past two decades. Specifically, opioid-related deaths increased during the early 2000s, plateaued around 2007, and then declined.1 What we cannot ignore is that improper use of prescription opioids led to many of these deaths; few deaths occurred when individuals used pharmaceutical opioids as prescribed. We also cannot disregard that chronic pain affects millions of Americans. It is a persistent and costly health condition, and opioids are currently a vital treatment option for pain. The U.S. Food and Drug Administration ("FDA") has endorsed properly managed medical use of opioids (taken as prescribed) as safe, effective pain management, and rarely addictive.2 Yet opioid abuse

is still prevalent and has become a complex social problem.

¶2 To address this problem, the State of Oklahoma ex rel. Mike Hunter, Attorney General of Oklahoma ("State"), sued three prescription opioid manufacturers and requested that the district court hold opioid manufacturers liable for violating Oklahoma's public nuisance statute. The question before the Court is whether the conduct of an opioid manufacturer in marketing and selling its products constituted a public nuisance under 50 O.S.2011, §§ 1 & 2. We hold that the district court's expansion of public nuisance law went too far. Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.

FACTS AND PROCEDURE

¶3 Since the mid-1990s, Appellant Janssen Pharmaceuticals, Inc. (and its related entities), a wholly-owned subsidiary of Appellant Johnson & Johnson (collectively "J&J"), has manufactured, marketed, and sold prescription opioids in Oklahoma. J&J specifically manufactured two FDA-approved Schedule II3 opioid medications: (1) Duragesic

--a transdermal patch that provides a controlled dose of pharmaceutical fentanyl4 ; and (2) Nucynta and Nucynta ER--tablets with tapentadol.5 J&J also manufactured a Schedule IV opioid medication: Ultram and Ultram Extended Release--tablets with tramadol.6 J&J marketed several other medications containing tramadol.

¶4 The State presented evidence that J&J used branded and unbranded marketing, which actively promoted the concept that physicians were undertreating pain. Ultimately, the State argued J&J overstated the benefits of opioid use, downplayed the dangers, and failed to disclose the lack of evidence supporting long-term use in the interest of increasing J&J's profits.

¶5 J&J no longer promotes any prescription opioids and has not done so for several years. J&J ceased to actively promote its Schedule II branded products by 2015. Specifically, J&J ceased to actively promote Duragesic

in 2007, and it divested its U.S. Nucynta product line in 2015. Even with J&J's marketing practices, these two Schedule II medications amounted to less than 1% of all Oklahoma opioid prescriptions. Overall, J&J sold only 3% of all prescription opioids statewide, leaving the other opioid manufacturers named in this suit responsible for selling 97% of all prescription opioids.7

¶6 On June 30, 2017, the State sued three opioid manufacturers--J&J (and its related entities8 ), Purdue Pharma L.P. (and its related entities9 ), and Teva Pharmaceuticals USA, Inc. (and its related entities10 ) alleging the companies deceptively marketed opioids in Oklahoma. The State settled with the other opioid manufacturers11 and eventually dismissed all claims against J&J except public nuisance. The district court conducted a 33-day bench trial with the single issue being whether J&J was responsible for creating a public nuisance in the marketing and selling of its opioid products. The district court held J&J liable under Oklahoma's public nuisance statute for conducting "false, misleading, and dangerous marketing campaigns" about prescription opioids. The district court ordered that J&J pay $465 million to fund one year of the State's Abatement Plan, which consisted of the district court appropriating money to 21 government programs for services to combat opioid abuse

.12 The amount of the judgment against J&J was not based on J&J's percentage of prescription opioids sold. The district court also did not take into consideration or grant J&J a set-off for the settlements the State had entered into with the other opioid manufacturers. Instead, the district court held J&J responsible to abate alleged harms done by all opioids, not just opioids manufactured and sold by J&J.

¶7 J&J appealed. The State cross-appealed contending that J&J should be responsible to pay for 20 years of the State's Abatement Plan, or approximately $9.3 billion to fund government programs. This Court retained the appeal.

¶8 The issue before this Court is whether the district court correctly determined that J&J's actions in marketing and selling prescription opioids created a public nuisance. We hold it did not. The nature of the nuisance claim pled by the State is the marketing, selling, and overprescribing of opioids manufactured by J&J. This Court has not extended the public nuisance statute to the manufacturing, marketing, and selling of products, and we reject the State's invitation to expand Oklahoma's public nuisance law.

¶9 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 law does not provide a remedy for this harm.

STANDARD OF REVIEW

¶10 This public nuisance action comes to us as an appeal from a judgment rendered in a bench trial. The district court's judgment presented for review is a compilation of both findings of facts and conclusions of law. K & H Well Serv., Inc. v. Tcina, Inc. , 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223. "When, as here, the case is tried to the court, its determination of facts [is] accorded the same force as those made by a well-instructed jury." Id . Our case law instructs that where "any competent evidence supports the trial court's findings of fact, the same will be affirmed." Id .

¶11 An action for abatement of a nuisance is equitable in nature. See, e.g. , Jackson v. Williams , 1985 OK 103, ¶ 9, 714 P.2d 1017, 1020. "In a case of equitable cognizance, a judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity." McGinnity v. Kirk , 2015 OK 73, ¶ 8, 362 P.3d 186, 190. When reviewing a case at equity, this Court is not bound by the district court's findings and will consider the whole record and weigh the evidence. Harrell v. Samson Res. Co. , 1998 OK 69, ¶ 31, 980 P.2d 99, 107.

¶12 Issues in this appeal concern the district court's legal interpretation of Oklahoma's nuisance statutes, specifically 51 O.S.2011, §§ 1 and 2. Statutory construction poses a question of law. State ex rel. Prot. Health Servs. State Dep't of Health v. Vaughn , 2009 OK 61, ¶ 9, 222 P.3d 1058, 1064. We review issues of law de novo , "since an appellate court has plenary, independent and non-deferential authority to reexamine a trial court's legal rulings." Id .

DISCUSSION
I. ORIGINS AND HISTORY OF OKLAHOMA PUBLIC NUISANCE LAW

¶13 Public nuisance began as a criminal remedy primarily employed to protect and preserve the rights and property shared by the public. It originated from twelfth-century England where it was a criminal writ to remedy actions or conditions that infringed on royal property or blocked public roads or waterways. Michelle L. Richards, Pills, Public Nuisance, and Parens Patriae:...

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7 cases
  • In re Purdue Pharma, L.P.
    • United States
    • U.S. District Court — Southern District of New York
    • 16 Diciembre 2021
    ...of liability was thrown out by the Oklahoma Supreme Court in a case against Johnson & Johnson. See State ex rel. Hunter v. Johnson & Johnson , 499 P.3d 719 (Okla. Sup. Ct. Nov. 9, 2021). However, also last month, an Ohio jury found three major pharmacy chains liable for damages on the theor......
  • City of Huntington v. AmerisourceBergen Drug Corp.
    • United States
    • U.S. District Court — Southern District of West Virginia
    • 4 Julio 2022
    ...of Oklahoma declined to extend Oklahoma public nuisance law to the manufacturing, marketing and selling of prescription opioids. 499 P.3d 719, 730 (Okla. 2021). The court identified "a clear national trend to limit public nuisance to land or property use." Id. at 730. To hold otherwise, the......
  • Cnty. of Lake v. Purdue Pharma, L.P. (In re Nat'l Prescription Opiate Litig.)
    • United States
    • U.S. District Court — Northern District of Ohio
    • 7 Marzo 2022
    ...argument relies exclusively on decisions from other states. See id. at 26-27 & n.2. For example, Defendants cite Hunter v. Johnson & Johnson , 499 P.3d 719 (Okla. 2021), which concluded the State could not assert public nuisance claims against opioid manufacturers under Oklahoma law based o......
  • Parris v. 3M Co.
    • United States
    • U.S. District Court — Northern District of Georgia
    • 27 Junio 2022
    ...use and not product use. (Daikin's Br. in Supp. of Daikin's Mot. to Certify, at 10 (quoting State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 730 (Okla. 2021)). But that national trend, whether valid or not, has no apparent basis in Georgia's public nuisance jurisprudence. The two Ge......
  • Request a trial to view additional results
2 firm's commentaries
  • Split Decision
    • United States
    • LexBlog United States
    • 31 Marzo 2022
    ...public policy implications of this gross overstretch of the law of nuisance, as discussed in State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 724-31 (Okla. 2021); In re Paraquat Products Liability Litigation, 2022 WL 451898, at *9-10 (S.D. Ill. Feb. 14, 2022); and Restatement (Third......
  • Enforcing The Line Between Product Liability And Public Nuisance
    • United States
    • Mondaq United States
    • 11 Mayo 2022
    ...the Oklahoma Supreme Court recently rejected nuisance claims against opioid manufacturers. See State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 725-31 (Okla. 2021). Several other courts have reached similar conclusions. See, e.g., People v. Johnson & Johnson, No. 19-CH-10481, 2021 I......
1 books & journal articles
  • The Perils and Promise of Public Nuisance.
    • United States
    • Yale Law Journal Vol. 132 No. 3, January 2023
    • 1 Enero 2023
    ...that tracks settlements in each state, see Settlement Statuses, supra note 19. (175.) State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 731 (Okla. (176.) See, e.g., People v. Purdue Pharma L.P., No. 30-2014-00725287, 2021 WL 7186146, at *4 (Cal. Super. Ct. Dec. 14, 2021) (rejecti......

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