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Friday, May 29th, 2020Last Update: Wednesday, May 6th, 2020 02:21:47 PM

Oklahoma Economy in Hands of State Supreme Court

By: Steve Byas

The decision for the state of Oklahoma in its opioid “nuisance” lawsuit against drug manufacturer Johnson and Johnson (J & J) will now go to the Oklahoma Supreme Court, as the High Court opted to not refer the case to the Oklahoma Court of Civil Appeals for review.

The decision could adversely affect the future of commerce in Oklahoma, as the novel legal theory of the state – that nuisance statutes should apply to private businesses operating in a legal fashion – leaves every private business at the mercy of a pro-plaintiff judge or jury.

Both sides in the case appealed the decision of Judge Thad Balkman, a former Republican state representative from Norman. Balkman was my state representative for six years, and lest one think my remarks in this opinion piece have anything to do with personal animosity against him, they should know that I voted for, campaigned for, and financially contributed to his legislative campaigns.

But Judge Balkman’s rulings against J & J were wrong. J & J wants Balkman’s verdict reversed, largely because the judge ruled that Oklahoma’s public nuisance law applied in this case. J & J attorneys argued, “The judgment ... rests on an unprecedented interpretation of Oklahoma public nuisance law, with grave implications for all businesses operating in the state. Contrary to a century of Oklahoma case law tying public nuisance liability to property use and to historically recognized nuisances per se, the district court ruled that the marketing and sale of lawful goods can constitute a public nuisance so long as a fact finder concludes it affects a large number of Oklahomans.”

Perhaps Balkman’s most egregious ruling was his rejection of J & J’s request for a jury trial, despite the guarantee found in both the United States and Oklahoma constitutions that a defendant has the right to their case being heard by a jury in civil cases, involving monetary awards. Balkman argued that he would decide the case himself, reasoning that juries are not needed to abate a nuisance.

This was considered a novel interpretation of nuisance torts, which usually involve damage to property. The ordinary remedy in such cases is simply to order a defendant to stop the action considered a nuisance.

Why is this such a danger beyond what happens to J & J? Some cities like New York City have used the same reasoning as Balkman to sue oil companies, clearly stretching the law beyond its intended purpose. The Wall Street Journal has called the Balkman decision nothing more than a “shakedown.”

What is J & J alleged to have done wrong? The Food and Drug Administration approved the use of the drugs, along with the warnings accompanying the drugs that opioids are highly addictive and should be used only as prescribed, and with great caution. J & J did not mislead anyone that their products had no adverse consequences if used in a manner other than prescribed.

As the Wall Street Journal noted, “Hunter (Oklahoma’s attorney general, who brought the case) can’t draw a clear line between doctors who supposedly relied on the opioid companies’ alleged misrepresentations and the injuries suffered by victims. He doesn’t even attempt to specify the particular doctors, prescriptions, pharmacists or victims involved in the chain of addiction.”

Balkman even allowed testimony by the father of a former OU football player who overdosed on opioids and other medications in an effort to relieve his chronic pain. But no evidence was even presented that the former player had even used any products of J & J. The danger in cases such as this is that no evidence is even needed to demonstrate any direct causation.

Under this dubious standard, anyone selling a legal product could be held liable if the purchaser used the product in a manner not intended by the manufacturer. For example, the family of a suicide victim could sue a gun manufacturer. The family of a person killed by a drunk driver could sue any liquor manufacturer. Why? They could be considered a “nuisance,” and the defendants are not even entitled to a jury trial, as is their constitutional right!

As the Wall Street Journal argued, cell phone makers could be liable for all the damages caused by distracted drivers.

The State Constitution clearly states, “The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed one thousand five hundred dollars ($1,500).” Disingenuous arguments that statutes or court decisions somehow alter this plain wording mean nothing to me. The Constitution does not say that “the right of trial by jury shall be and remain inviolate, except when a judge declares it an equity case.” Such reasoning guts the protections of the Oklahoma State Constitution.

This raises another issue – that of exposing citizens to the whims of a jury, or in this case, one lone judge. For some inexplicable reason, some claiming to be conservatives or libertarians argue that juries should have no limits to what they decide. If a jury decides a defendant should have to pay $100 million for this or that wrong, there should be no restrictions on their judgment. For that matter, they could make it $100 billion, it is just up to them.

But we don’t let juries do that in criminal cases. Let’s say that someone is convicted of shop lifting. If some judge or jury wanted to impose life in prison, or even the death penalty, they should be able to do so, under this perverted reasoning. No sane person would argue for no restrictions on the types of punishments that a judge or a jury can hand down in a criminal case, so why should they have no limits in a civil case?

This is not to be confused with jury nullification. As a practical matter, if a jury thinks a law is unjust, they can simply refuse to convict. What they should not be able to do, however, is impose some draconian punishment beyond what duly elected representatives have decided to impose. They should not be able to do that in criminal cases – or in civil cases. And they should not be able to ignore the constitutional rights of any defendant, as was done to Johnson and Johnson.

Be aware that you and your business may be the next “nuisance.”

Steve Byas is the Editor of the Oklahoma Constitution, a regular contributor to The New American magazine, and the author of History’s Greatest Libels. He can be contacted at:

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