An Orange County Superior Court Judge ruled earlier this month that four drug companies cannot be held liable for California’s opioid epidemic. It marked the first trial win for any drug companies in the more than 3,300 lawsuits filed by states and local governments over a drug abuse crisis that the U.S. government says led to nearly 500,000 opioid overdose deaths over two decades.

The only other opioid trial to reach a verdict resulted in an Oklahoma judge in 2019 ordering J&J to pay $465 million to the state. However, the Oklahoma Supreme Court just reversed the verdict, finding the trial judge misinterpreted the state’s public nuisance law.

The Attorney General of Oklahoma sued three prescription opioid manufacturers and requested that the district court hold opioid manufacturers liable for violating Oklahoma’s public nuisance statute. The State settled with the other opioid manufacturers and eventually dismissed all claims against J&J except public nuisance.

The State presented evidence that J&J used branded and unbranded marketing, which actively promoted the concept that physicians were under treating 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.

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, and J&J appealed.

The question before the Oklahoma Supreme Court was whether the conduct of an opioid manufacturer in marketing and selling its products constituted a public nuisance

In a 5-1 ruling, the high court held 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.

Writing for the majority, Justice James R. Winchester said stopping the opioid crisis is a “laudable goal” but cannot be done by “reshaping” the public nuisance law that has traditionally been used to address “discrete, localized” problems.

“The district court’s expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems,” Winchester wrote. “Further, the district court stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far.”

The majority said the high court has followed criminal and property-based limitations on the public nuisance law for 100 years.

The dissent writes that he would have reversed the verdict and sent the case back to the trial court for a new award.

“I would remand to the district court to recalculate damages based upon J&J’s share of the market in the years it sold its opioids in Oklahoma with its deceptive marketing scheme….,The attorney general’s basic theory of the case is tenable, both in law and equity.”