Johns Hopkins Undergraduate Law Review

June 18th 2024 | Havana Mullay

Edited by Stella Lee

Beginning in the 1990s, the opioid crisis in the United States has taken over the lives of millions. Whether the negative consequences have resulted in addiction or death, those impacted have fallen victim to various forms of opioids. Those responsible for the rise of opioids have typically been large pharmaceutical industries that have profited off the addiction of thousands. This horrific behavior has been ongoing for years, resulting in numerous overdose deaths. This first began in the 1990s where there was an uptick in opioid prescriptions from medical institutions [10]. The drugs were both natural and semi-synthetic and used to treat pain. These specific opioids were developed by major pharmaceutical companies and then sold to medical institutions. Beginning in 2019, pharmaceutical industries have finally been held accountable for their actions in the opioid crisis, but not all have been properly punished. 

In the case Oklahoma vs. Johnson & Johnson, the state of Oklahoma won a lawsuit against the pharmaceutical industry company Johnson & Johnson, which held it responsible for violating Oklahoma’s public nuisance law due to their involvement in the opioid crisis [3]. This landmark ruling made the case the first successful one against a pharmaceutical industry involved in the opioid crisis. Despite Oklahoma successfully winning this case, however, it was appealed by Johnson & Johnson, and overturned in 2021 by the Oklahoma Supreme Court because it believed the company did not violate the public nuisance law [4]. Overturning this case is incredibly detrimental for the opioid crisis as it excuses the behavior of a major pharmaceutical company that knowingly ruined millions of lives. This article will investigate how the public nuisance statute was applied during the first and second trials, and shall determine how the Federal Trade Commission Act could have been used as an alternative to the Oklahoma public nuisance statute. 

In the first trial for Oklahoma vs. Johnson & Johnson in 2019, the Oklahoma public nuisance statute was poorly executed, leading to its eventual overturning in 2021. Although Oklahoma originally won its case against the pharmaceutical company by using section 50 O.S.2011 §§ 1 & 2 of the Oklahoma public nuisance statute, the outcome of the case was not as successful [8]. According to the specific sections of the public nuisance statute that were used, the definition of nuisance is “something that consists of unlawfully doing an act, injuring/endangering the health and safety of others, or rendering another person insecure in life” [9]. It was originally argued that Johnson & Johnson did in fact violate the public nuisance statute because the company intentionally downplayed the dangers and profited off the benefits of opioids [3]. Furthermore, the state believed that Johnson & Johnson was at the root cause of the opioid crisis, as they were one of the main opioid manufacturers supplying large masses of oxycodone to the company Purdue Pharma due to a shared long-term agreement [1]. This resulted in Johnson and Johnson making billions over a 20-year period [3]. These actions were thought to fall in line specifically with the idea that Johnson & Johnson endangered the health and safety of people [8]. Therefore, the state of Oklahoma came out victorious with a total of $465 million dollars paid to them by Johnson & Johnson, but it fell far short of the $17 billion that the state initially sought [3]. Such a small amount in comparison to the original request reveals weaknesses of the public nuisance statute that proved ineffective in court. Therefore, it comes as no surprise that the case was later appealed. 

Two years after the original trial, the case was formally appealed in 2021 by Johnson & Johnson. The Oklahoma Supreme Court examined the case and threw out the 2019 ruling. It rejected the state’s argument that Johnson & Johnson violated public nuisance laws because it did not believe the state’s allegations, which held that the company misconstrued the benefits of opioids and downplayed its dangers; the Court ultimately found the state’s argument to be weak [4]. Specifically, the judges ruled in a 5-1 majority writing that the “Oklahoma public nuisance law does not extend to the manufacturing, marketing and selling of prescription opioids” [4]. They found that Johnson & Johnson’s pharmaceutical division, Jansen, did not cause a public nuisance when it came to marketing and promoting prescription pain medications, stating that as manufacturers they could not be held “perpetually liable” for their products [4]. Moreover, the Oklahoma Supreme Court found issue with the fact that the state extended the public nuisance statute in the first trial to the manufacturing, marketing, and selling of prescription opioids when the statute does not necessarily apply to these situations [8]. In fact, California Superior Court Judge Peter Wilson ruled that “There is no evidence supporting a causal connection between the alleged conduct and…medically inappropriate prescriptions” [8]. While it was frustrating for the state to have their case appealed especially from a moral perspective, the appeal had valid basis and ground. The state used a faulty statute that proved ineffective, leaving room for misinterpretation. First, the Supreme Court found that the state was unable to identify a public right under the nuisance law that even pertained to the case at hand [4]. The public nuisance law was historically used to condemn wrongful activity pertaining to clean water or air which by no means relates to the actions of Johnson & Johnson. Furthermore, the state was unable to account for the fact that Oklahoma’s public nuisance statute is written in such a way that it appears to be more applicable toward individuals that have created a local nuisance as opposed to a statewide or federal issue that has emerged on a wide scale from multiple individuals. According to Winchester, “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” [7]. This made it harder to pinpoint how the actions of the company specifically impacted a large group of people. Ultimately, the failure to select a law that had previous history with pharmaceuticals was the largest mistake. 

The Federal Trade and Commission (FTC) Act could have been used as a better alternative to the Oklahoma public nuisance statute and might have helped avoid an appeal in this case. The FTC Act itself is used to prevent deceptive and unfair practices with the marketing of products that negatively impact a consumer. It specifically “prohibits unfair or deceptive advertising in any medium” and every advertisement must tell the truth with no relevant information left out [11]. This directly applies to the actions of Johnson & Johnson because the company marketed opioids as “safe for everyday pain and having a low risk of addiction” when they actually were creating specific drugs with highly addictive ingredients [1]. In fact, the company intentionally engineered a specialized form of oxycodone, derived from a mutated strain of poppy seed, to become more addictive than existing versions, thereby amplifying its appeal and marketability [1]. Through Johnson & Johnson sales representatives, the organization also targeted Oklahoma doctors around 150,000 times, selling them their synthetic opioids [1]. The actions of Johnson & Johnson make it clear that the company illegally marketed opioids as safe with low addiction rates, when in reality the company participated in deceptive behaviors that were non-compliant with the FTC Act. While the Oklahoma Supreme Court ruled in the second trial that Johnson & Johnson manufacturers cannot be held perpetually liable for their products in general, it is evident that their marketing strategies and false advertisement directly impacted consumers who purchased these products. Although the company was not completely in control of how their drug impacted consumers on an individual level, the fact that they made their drugs highly addictive was a tactical way of increasing sales while harming individuals. It would have been incredibly difficult to ignore the companies’ actions when regarding the FTC Act, proving that the act would have been easier to apply over the flawed usage of the public nuisance statute. Furthermore, the Oklahoma Supreme Court stated that this case was more of a products liability case than one that involved a public nuisance, meaning that had the state used a law like the FTC Act, it may have emerged as victorious [4]. The state’s failure to acknowledge this understanding and use a more applicable law ultimately led to the major loss against such a large corporation. 

Oklahoma vs. Johnson & Johnson has impacted the opioid crisis today because it paved the way for other states to hold pharmaceutical companies liable, even if it was unsuccessful in other ways. It was the first of more than 3,300 lawsuits over the opioid crisis against pharmaceutical manufacturers, drug distributors, and pharmacies to go to trial. Some states that have since had their own trials over the opioid crisis include Massachusetts, New York and California; all have won cases and gained settlements at the state level with these corporations [2]. On a national level, the United States formed a National Opioid Settlement in 2021, a complex arrangement involving 46 states and five opioid manufacturers [6]. Specifically, each company is subject to paying billion dollar settlements to the federal government over the next decade. One of these corporations includes Johnson & Johnson despite that in the state of Oklahoma, they were not subject to payments from their previous case. Regardless, this massive national settlement will be incredibly beneficial for those who were negatively impacted by the opioid crisis, as the money will go toward building strategies and engaging stakeholders in education on prevention, treatment, and recovery [6]. As of January 2024, the implementation and allocation of funding throughout each of the impacted 46 states are still being established in order to effectively combat the opioid crisis [6]. From a legal standpoint, the case of Oklahoma vs. Johnson & Johnson also serves as a reminder of the importance of using proper laws and case theory despite how morally dire a situation is. In the United States’ legal system, the application of the law is weighed more heavily than theories or beliefs. There is a strong focus on judicial precedent, stare decisis, and the rule of law, making the details of a good case essential in order to fulfill the standards within the United States legal system [5]. 

Sources:

[1] “After Resting Case, State Points to Critical Evidence That Shows Johnson & Johnson Is Kingpin behind State’s Opioid Epidemic: Oklahoma Attorney General.” After Resting Case, State Points to Critical Evidence that Shows Johnson & Johnson is Kingpin Behind State’s Opioid Epidemic | Oklahoma Attorney General. Accessed April 7, 2024. https://oag.ok.gov/articles/after-resting-case-state-points-critical-evidence-shows-johnson-johnson-kingpin-behind. 

[2] Hoffman, Jan. (a). “15 States Reach a Deal with Purdue Pharma, Advancing a $4.5 Billion Opioids Settlement.” The New York Times, July 8, 2021. https://www.nytimes.com/2021/07/08/health/purdue-pharma-opioids-settlement.html. 

[3] Hoffman, Jan. (b). “Johnson & Johnson Ordered to Pay $572 Million in Landmark Opioid Trial.” The New York Times, August 26, 2019. https://www.nytimes.com/2019/08/26/health/oklahoma-opioids-johnson-and-johnson.html. 

[4] Hoffman, Jan. (c). “Oklahoma Supreme Court Throws out $465 Million Opioid Ruling against J.&J.” The New York Times, November 9, 2021. https://www.nytimes.com/2021/11/09/health/oklahoma-supreme-court-johnson-johnson-opioids.html#:~:text=The%205%2D1%20decision%20is,accountable%20for%20the%20opioid%20epidemic.&text=Oklahoma%27s%20highest%20court%20on%20Tuesday,role%20in%20the%20opioid%20epidemic. 

[5] “Legal Systems.” Legal Information Institute. Accessed April 22, 2024. https://www.law.cornell.edu/wex/legal_systems#:~:text=The%20United%20States%2C%20like%20most,and%20the%20rule%20of%20law. 

[6] Nashp. “State Approaches for Distribution of National Opioid Settlement Funding.” NASHP, January 2, 2024. https://nashp.org/state-tracker/state-approaches-for-distribution-of-national-opioid-settlement-funding/#:~:text=States%20are%20in%20the%20process,of%20the%20National%20Opioid%20Settlement. 

[7] Oklahoma Court overturns $465 mln opioid judgment against J&J | Reuters. Accessed April 21, 2024. https://www.reuters.com/business/oklahoma-court-overturns-465-million-opioid-award-against-johnson-johnson-2021-11-09/. 

[8] “Oklahoma Ex Rel. Attorney General of Oklahoma V. Johnson & Johnson.” Justia Law. Accessed April 7, 2024. https://law.justia.com/cases/oklahoma/supreme-court/2021/118474.html#:~:text=The%20question%20before%20the%20Court,nuisance%20law%20went%20too%20far. 

[9] Oklahoma Statutes Title 50. nuisances. Accessed April 7, 2024. https://oksenate.gov/sites/default/files/2019-12/os50.pdf. 

[10] “Opioid Data Analysis and Resources.” Centers for Disease Control and Prevention, August 8, 2023. https://www.cdc.gov/opioids/data/analysis-resources.html#:~:text=The%20second%20wave%20began%20in,in%20overdose%20deaths%20involving%20heroin.&text=The%20third%20wave%20began%20in,those%20involving%20illicitly%20manufactured%20fentanyl. 

[11] The Office of Technology. “Advertising and Marketing on the Internet: Rules of the Road.” Federal Trade Commission, April 2, 2024. https://www.ftc.gov/business-guidance/resources/advertising-marketing-internet-rules-road#bus.