Oklahoma Supreme Court Slays a Monster
By Steve ByasThe recent 5-1 decision by the Oklahoma Supreme Court, reversing the decision reached by Cleveland County Judge Thad Balkman against drug manufacturer Johnson and Johnson, is a huge victory not only for that pharmaceutical company, but is also a huge victory – even more so – for the people of Oklahoma.
In 2019, Judge Balkman, a former Republican state representative in Norman, ruled in a case brought by then-Attorney General Mike Hunter on behalf of the state of Oklahoma, that J & J had violated the state’s public nuisance statute, and must pay $465 million to the state of Oklahoma. Balkman accepted the argument of the plaintiffs in the case that J & J was at least partially responsible for creating a public nuisance in the marketing and selling of its opioid products. The money was to go to 21 government programs to combat opioid abuse.
Hunter thought $465 million was not enough, and also appealed Balkman’s ruling, arguing that they should pay about $9.3 billion instead.
In the decision, written by Justice James Winchester, the court said, “We hold the opioid manufacturer’s action did not create a public nuisance. The district court in extending the public nuisance statute to the manufacturing, marketing, and selling of prescription drugs.”
Had the state prevailed, this decision would have left Oklahoma’s business community in the cross-hairs of every dollar-seeking trial lawyer in America, and would have kept more business (and jobs) from coming to the state, and would have no doubt driven many existing businesses out of the state – fearing that they, too, would be hammered with similar decisions.
The reasoning of the “Republican” attorney general, Mike Hunter, who has since resigned, and the “Republican” judge, Thad Balkman, was that if a manufacturer sold a legal product, and that product is then used in a way other than recommended by the manufacturer, the manufacturer is still responsible for all of the adverse effects. To Balkman’s credit, he did not go for the astronomical sum of over nine billion dollars.
Under this warped reasoning, were someone to buy a Ford truck and use it to kill people, or to buy a gun and use it to shoot people, then the manufacturers would be monetarily held accountable. One can only see the negative effects such a standard would have on this state.
First of all, the nuisance statutes were not designed for such purposes. The state Constitution explicitly states that everyone is entitled to a jury trial in civil actions in which money is sought. Nuisance cases do not have jury trials because they are simply attempting to establish equity, e.g. tell somebody to quit letting their dog defecate on their lawn. Yet, Balkman refused J & J their constitutional right to a jury trial, choosing to decide the case himself.
Balkman also allowed testimony of the father of the late OU football player, Austin Box, who died of a drug overdose years ago. Box, who was one of my favorite players at OU, was a linebacker and suffered painful injuries. It is beyond question that Box suffered pain, and sought relief by pain-killing drugs. Millions of Americans suffer pain and use opioids to relieve that pain, yet relatively few die from drug overdoses. The vast majority of opioid drug abusers are not these poor souls in chronic pain.
In Box’s case, no evidence was introduced to show that Box had even used any J & J products. In fact, Box used several different drugs other than those produced by J & J. Anyone who knows anything at all about trials, knows that lawyers often raise the issue of irrelevant evidence. For example, it is not relevant that if someone dies in an automobile crash because of the defect of a Toyota vehicle, if the case is about the Ford Motor Company. Yet, Balkman allowed the testimony of Box’s father.
“In reaching this decision,” Winchester wrote, “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.”
The case of former A.G. Hunter also did not give enough weight to how much legally-prescribed and legally-used opioids have alleviated chronic pain in untold numbers of Oklahomans. Taking medication away from them can leave them to suffer unnecessarily. Some cannot take it any more and commit suicide.
And not all opioids are Fentanyl, which is usually trotted out as though all opioids are this highly-dangerous drug.
Also disturbing are the anti-drug crowd, who hailed Balkman’s decision, because they just don’t like drug companies, or they just don’t like Johnson and Johnson. Hopefully, these people will never be a judge in a case. In the Old Testament, the Hebrews were told that a judge should not show partiality in making a ruling either for the rich or for the poor. No exception was added saying that prejudice by a judge against a drug company was acceptable.
“Applying the nuisance statutes to lawful products as the State requests,” Winchester opined, “would create unlimited and unprincipled liability for product manufacturers; this is why our Court has never applied public nuisance law to the manufacturing, marketing, and selling of lawful products.”
Winchester added, “Public nuisance and product-related liability are two distinct causes of action, each with boundaries that are not intended to overlap … Mass harms caused by dangerous products are better addressed through the law of products liability.”
In a case in North Dakota, the U.S. Court of Appeals for the Eighth Circuit summed it up well, noting that under this theory that money-lawsuits using nuisance statutes “would give rise to a cause of action regardless of the defendant’s degree of culpability or the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.”
The Oklahoma Supreme Court added that a “manufacturer does not generally have control of its product once it is sold,” and “a manufacturer could be held perpetually liable for its product under a nuisance theory.”
Had the Oklahoma Supreme Court supported Balkman’s decision in this drug case, it would have been a prescription for economic disaster to the state, and yet another avenue for opponents of the right to keep and bear arms to bankrupt gun manufacturers.
I don’t always agree with the Oklahoma Supreme Court, but I am thankful that someone in our judicial system showed some sense.
Steve Byas is Editor of the Oklahoma Constitution and author of several magazine articles and books, including History’s Greatest Libels.