Legislation and regulation are possible responses. Governments can enact laws to curb or even outlaw the conduct. But legislation and regulation take time and generally involve compromise. And although the regulatory process may curb future conduct, it does not alter past conduct and may not provide an adequate recompense for its costs.
How, then, can government officials both halt the underlying conduct and ameliorate the deleterious effects perceived as flowing from it? For many decades, one popular method has been to seek to declare the conduct a public nuisance and to obtain a court order to abate it.
It is not hard in contemporary America to imagine this kind of scenario. Some say climate change results from America’s dependence on fossil fuels. Others see an obesity epidemic, stemming at least in part from the consumption of too much sugar or too much fat, causing ever-increasing health-care issues. Still others might argue that the use of alcohol and other intoxicants leads to serious automobile injuries, deaths, unemployment, and mental health issues. Public nuisance claims have appeared in air pollution, asbestos, tobacco, lead paint, PCB, PFAS, and gun litigation. It was even used in 1956 during the Montgomery, Alabama, bus boycott. Dr. Martin Luther King Jr. had to go “to court to defend himself and the carpools against the local authorities who had declared it ‘a public nuisance.’” David Halberstam, The Fifties 562 (Ballantine Books 1994) (1993).
A Brief Background of State ex rel. Hunter v. Johnson & Johnson
This was the issue facing the Oklahoma Supreme Court in State ex rel. Hunter v. Johnson & Johnson. 2021 OK 54¸ 499 P.3d 719. As framed by the court, the question there was “whether the district court correctly determined that J&J’s actions in marketing and selling prescription opioids created a public nuisance.” Id. ¶ 8, 499 P.3d at 723. The court reversed the ruling of the trial court, vacated the state’s $465 million judgment, and ruled that the state was not entitled to an additional $9 billion that the state sought in its cross-appeal.
Public nuisance as a cause of action has an almost 1,000-year history. As the Oklahoma court put it, “[i]t 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.” Id. ¶ 13, 499 P.3d at 723. The claim “evolved into a common law tort” and “covered conduct, performed in a location within the actor’s control, which harmed those common rights of the general public.” Id. ¶ 15, 499 P.3d at 724. Oklahoma’s public nuisance statute codified the common law, has never been amended, and has been applied to “criminal or property-based” conduct that “annoys, injures, or endangers the comfort, repose, health, or safety of others.” Id. ¶ 19, 499 P.3d at 725 (discussing Okla. Stat. tit. 50, § 2). Courts have limited the remedy available in public nuisance claims to abatement “at the expense of the one in control of the nuisance.” Id. ¶ 15, 499 P.3d at 724.
In Hunter, the Oklahoma attorney general sued Johnson & Johnson, Purdue Pharma, Teva Pharmaceuticals, and various related entities, claiming as much as $17 billion in damages under multiple theories of liability. In its June 30, 2017, complaint, the state alleged that the defendants engaged in deceptive marketing tactics regarding opioids in Oklahoma, resulting in large losses to the state, its citizens, and its taxpayers. The case was filed in Cleveland County, located just south of Oklahoma City and the home of the University of Oklahoma. (See trial court documents here.)
A couple of months before the scheduled trial, Purdue Pharma settled with the state for $280 million, of which $200 million was designated for the establishment of an endowment for the National Center for Wellness and Recovery at the Oklahoma State University Center for Health Sciences. A week later, the state voluntarily dismissed all claims against the remaining defendants except for “its cause of action for public nuisance and remedy of abatement.” Then, just two days before trial, the state settled with Teva Pharmaceuticals for an additional $85 million.
Trial, Judgment, and Appeal
On May 28, 2019, the Oklahoma trial commenced. The only remaining defendants were Johnson & Johnson and related entities. Because the only remaining claim—public nuisance—was equitable in nature, no jury was seated. The bench trial proceeded over the next two months, with testimony and arguments concluding in mid-July.
Then, on August 26, 2019, the trial court issued its judgment. The “Judgment After Non-Jury Trial” was 42 pages in length and included 58 separate findings of fact and 89 conclusions of law. Among the more significant conclusions were the court’s award of over $572 million for “abatement” of the public nuisance and the court’s determination that the plaintiff “did not present sufficient evidence of the amount of time and costs necessary, beyond year one, to abate the Opioid Crisis.” Judgment After Non-Jury Trial, State ex rel. Hunter v. Purdue Pharma L.P., No. CJ-2017-816, at 41, ¶¶ 59–60 (Okla. Dist. Ct. Cleveland Cnty. Aug. 26, 2019).
In its November 15, 2019, final judgment, the trial court corrected what was essentially a $107 million error in calculation and adjusted the final award to just over $465 million. Final Judgment After Non-Jury Trial, State ex rel. Hunter v. Purdue Pharma, L.P., No. CJ-2017-816, 2019 WL 9241510, at 41, ¶ 63 (Okla. Dist. Ct. Cleveland Cnty. Nov. 15, 2019). The November 15 order, the judgment ultimately appealed to the Oklahoma Supreme Court, was even more detailed than the original. It contained 57 factual findings and 102 legal conclusions. The court broke down by agency which Oklahoma agencies required specific assets and would receive specified funds. For example, it found that the state nursing board required a full-time prosecutor, a legal assistant, and a case manager. Judgment funds were to be placed in an Oklahoma “Opioid Lawsuit Abatement Fund,” id. at 42, ¶ 69, and the court retained jurisdiction to administer the abatement plan. Id. at 43, ¶ 72.
Johnson & Johnson appealed. So, too, did the state. The company sought reversal of the $465 million judgment. The state cross-appealed and asked for an additional $9 billion for years 2–20 of its abatement plan. These were the issues facing the Oklahoma Supreme Court in the appeal of the Oklahoma opioids litigation.
The court began its analysis by stating the obvious, i.e., that “a[n] action for abatement of a nuisance is equitable in nature.” State ex rel. Hunter v. Johnson & Johnson, 2021 OK 54¸ ¶ 11, 499 P.3d 719, 723. After giving the aforementioned history of Oklahoma’s general and public nuisance statutes, the court then disposed of an issue raised in the one justice dissent, countering that it was “not limiting public nuisance to a defendant’s use of real property.” Id. ¶ 18, 499 P.3d at 725. The court listed several examples of nonproperty-based public nuisances, such as gambling on dog or horse races, operating a monopoly, and displaying and selling obscene materials. Id. ¶ 19, nn.13–14, 499 P.3d at 725, nn.13–14. But the court also noted that its precedents nevertheless limited the claim “to defendants (1) committing crimes constituting a nuisance, or (2) causing physical injury to property or participating in an offensive activity that rendered the property uninhabitable.” Id. ¶ 18, 499 P.3d at 724. To state it differently, the Oklahoma Supreme Court has “applie[d] the nuisance statutes to unlawful conduct that annoys, injures, or endangers the comfort, repose, health, or safety of others. But that conduct has been criminal or property-based conflict.” Id. ¶ 19, 499 P.3d at 725 (emphasis added).
With this background, the court went on to analyze the state’s claim against Johnson & Johnson. The chief complaint was that the company, in promoting and marketing its opioid products, failed to warn of the dangers of addiction. This type of claim, the court stated, “sounds in product-related liability,” which is distinct from, and does not overlap with, public nuisance. Id. ¶¶ 20–21, 499 P.3d at 725. The court then gave three reasons that the law of “[p]ublic nuisance is fundamentally ill-suited to resolve claims against product manufacturers”: “(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.” Id. ¶ 23, 499 P.3d at 726.
The second and third reasons are fairly self-explanatory and received much of the postopinion media attention. As to point two, the court stated that Johnson & Johnson could not control the actions of wholesalers, legislators, regulators, distributors, doctors, pharmacies, or even individual users. Id. ¶ 30, 499 P.3d at 728–29. Also important was the fact that Johnson & Johnson sold only 3 percent of prescription opioids statewide and should not be held responsible for opioids manufactured, marketed, and sold by others. Id. ¶ 31, 499 P.3d at 729. As to point three, the court simply stated that Oklahoma has always rejected liability of manufacturers in perpetuity and that “we again reject perpetual liability here.” Id. ¶ 33, 499 P.3d at 729.
Media reports tended to downplay point one, the public right doctrine, perhaps because public right analysis is more technical than all but the most sophisticated mainstream media can generally explain. A public nuisance, of course, “involves a violation of a public right”—but “a public right is more than an aggregate of private rights by a large number of injured people.” Id. ¶ 24, 499 P.3d at 726. Instead, it involves a shared right to a public good, such as clean air or water.
On the positive side, opioids are lawful products. They have good, beneficial uses. The treatment of pain is of great value. On the negative side, the fact that some or even many people abuse a lawfully manufactured product does not itself create an actionable claim. Indeed, “[t]he sheer number of violations does not transform the harm from individual injury to communal injury.” Id. ¶ 24, 499 P.3d at 726–27.
At this point, the court began reviewing similar cases involving other products. It found especially persuasive the Illinois Supreme Court’s opinion on guns and the New Jersey and Missouri rulings regarding lead paint. City of Chi. v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 290 Ill. Dec. 525, 821 N.E.2d 1099 (2004); In re Lead Paint Litig., 191 N.J. 405, 924 A.2d 484 (2007); City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 116 (Mo. 2007). As in Beretta, the Hunter court found that the alleged nuisance was far removed from the manufacture and distribution of the product, noting that numerous governmental agencies regulate virtually every aspect of the use of opioids. Hunter, 2021 OK ¶ 28, 499 P.3d at 728. The court even cited Beretta as supporting its conclusion that there is “a clear national trend to limit public nuisance to land or property use.” Id. ¶ 35, 499 P.3d at 730.
One final issue concerned the remedy that the trial court had fashioned. Abatement is the only remedy available for public nuisance. But the court held that Johnson & Johnson “cannot abate the alleged nuisance.” Id. ¶ 32, 499 P.3d at 729. The abatement plan that the lower court imposed did nothing to “stop the act or omission that constitutes a nuisance” and therefore “is not an abatement.” Id. ¶ 32, 499 P.3d at 729.
The court concluded by reaffirming “the traditional limits on nuisance liability.” Id. ¶ 39, 499 P.3d at 731. The trial court erred when it stepped “into the shoes of the Legislature by creating and funding government programs designed to address social and health issues.” Id. ¶ 39, 499 P.3d at 731. ln a somewhat rare statement of support for the separation of powers, the court declared that “the legislative and executive branches . . . are more capable than courts to balance the competing interests at play in societal problems.” Id. ¶ 39, 499 P.3d at 731.
One justice dissented. But even he would have reversed the trial court ruling. Only in-state conduct, he wrote, could support an Oklahoma public nuisance claim. The dissent also criticized the damages award for not being limited to damages caused by the defendant.
The Role of Amici
While not directly mentioned in the opinion, numerous amici played an important role on both sides, but especially from the defense perspective. Amici do not appear in most appeals at the Oklahoma Supreme Court, and their presence is often unnecessary or even superfluous. But given the magnitude of important public policy issues at stake in this case, amicus briefing was crucial.
Any defendant had to recognize the enticing allure of hundreds of millions, if not billions, of dollars. Government funds are always in short supply, and the chance of receiving an infusion of free, out-of-state dollars is tempting. Amici—including not only trade associations and other public interest groups but also renowned professors of law—played a central role in underscoring the intellectual basis for traditional notions of public nuisance law.
Does the ruling in State ex rel. Hunter v. Johnson & Johnson portend a shift in the long history of public nuisance litigation? It is probably too early to say with any certainty. In this regard, though, the Oklahoma Supreme Court stressed two vital points. First, public nuisance litigation is “fundamentally ill-suited” to claims against manufacturer’s products. Id. ¶ 23, 499 P.3d at 726. Second, relief for public nuisance claims must remain limited to traditional notions of abatement. Thus, the manufacturing process that causes pollution may create an abatable public nuisance—but the manufacturing process is distinct from the distribution and sale of the manufactured product, which do not fit within traditional notions of public nuisance.
Remembering and emphasizing these two points should inhibit courts from inappropriately expanding public nuisance law. The Oklahoma ruling is a significant step toward retaining traditional notions of public nuisance law and moving away from expanding the claim to include mass torts litigation.
Andy Lester, a partner in the Oklahoma City, Oklahoma, office of Spencer Fane LLP, represented Johnson & Johnson in State ex rel. Hunter v. Johnson & Johnson, 2021 OK 54¸ 499 P.3d 719. The views expressed in this article are his alone and do not represent the views of Johnson & Johnson, Spencer Fane, or any of the other lawyers who worked on the case.