By Anthony T. Caso, a Clinical Professor of Law at Chapman University Fowler School of Law where he directs the Constitutional Jurisprudence Clinic.
A trial judge in Oklahoma wants to control what type of medication your doctor can prescribe to treat your pain. It does not matter if the pain medication is approved by the Food and Drug Administration (FDA). Nor does it matter if your doctor believes that you need the medication to control your pain. This Oklahoma trial judge (without any medical training) thinks he knows better how to treat your pain.
This is the practical effect of a trial court judgment in Cleveland County, Oklahoma. In that case, the judge ruled that Johnson & Johnson should pay nearly half a billion dollars in damages to the state (and in fees to its private contingent-fee lawyers) for the “public nuisance” of manufacturing a lawful prescription drug. The trial court ruled that Johnson & Johnson was responsible for the opioid-drug epidemic in Oklahoma because it sponsored speakers at medical conferences, helped professionals publish articles in medical journals, and partnered with academic groups to sponsor seminars. The company in fact manufactured and sold less than one percent of all opioid prescription drugs sold in Oklahoma. But the trial court ruled that the company’s “unbranded marketing” efforts (talking to medical professionals about the efficacy of prescription opioids) were responsible for the entire opioid addiction and overdose problem in Oklahoma. It did not matter if the drugs were purchased illegally, used against the doctor’s orders, or whether the individual taking the drugs engaged in doctor shopping to find someone who would prescribe more of the drug. It did not matter that Johnson & Johnson prescribed no drugs itself—only the patient’s doctor can do that. Nonetheless, the trial court ruled that this one company was solely responsible for the opioid problem in Oklahoma. Something is wrong with this picture.
This Working Paper will not assess whether Johnson & Johnson should have developed and sold pain-relieving drugs. That is a question for the FDA. Instead, this paper examines the use of an obscure legal theory—public nuisance—to allow courts and plaintiffs’ lawyers to make public policy outside of the legislative process. A legal theory that the courts developed to remedy harm to public property or large numbers of property owners is being increasingly used to place local trial judges in charge of public policy on everything from climate change to gun violence. Of course, the trial judge cannot enact public policy. But the judge can issue multi-million-dollar verdicts. Those verdicts will do little to cure a problem. They will, however, make the plaintiffs’ lawyers who brought these cases rich. The paper further argues that the Oklahoma court applied this legal theory in a manner that violates the First Amendment. The court’s order punished protected speech and deters others from speaking on this issue.
**Click on the PDF button above for the full paper**