Anthony T. Caso, is a Clinical Professor of Law at Chapman University Fowler School of Law where he directs the Constitutional Jurisprudence Clinic.
In August of 2019, an Oklahoma trial judge used a unique interpretation of “public nuisance” liability to hold Johnson & Johnson liable for the state’s entire opioid problem – notwithstanding the fact that Johnson & Johnson sold less than one percent of the prescription opioid pain relievers in the state. Ignoring such fine points, the judge held the company liable for hundreds of millions of dollars that would be used (after the private plaintiffs’ attorneys were paid their share) to address the problem of illegal drug use. Hopefully, that has you scratching your head in confusion. How could a company that sold less than one percent of the legal prescription medications in the state be responsible for all of the problems associated with illegal abuse of prescription drugs and the use of illegal drugs? That decision, and the legal problems associated with the trial judge’s reasoning are explored in my Washington Legal Foundation Working Paper, “Judge as Doctor and Legislator: A Case Study in the Consequences of Broader Public Nuisance Liability.”
Trial attorneys have been pushing local governments to file these public nuisance cases in order to win huge attorney fee awards. Cases have been filed against drug manufacturers over the opioid crisis, gun manufacturers over violent crime, and energy companies over global climate change. Other than the Oklahoma verdict (which should be overturned on appeal), these cases rarely win. Yet these plaintiffs’ attorneys, and their compatriots in public office, keep filing the cases in the hopes of wearing their opposition down. That strategy worked with the tobacco companies. None of the tobacco litigation was successful—the tobacco companies instead agreed to nationwide settlement. Hundreds of millions of dollars went into the public treasuries of the states and localities that took part in the settlement, and hundreds of millions of dollars went into the pockets of the private plaintiffs’ lawyers who litigate these cases. With that type of possible payout, it is no wonder that we keep seeing new efforts to bring more “public nuisance” cases, whatever their merits.
But a new decision from a California trial court may help convince those pushing “public nuisance” theory in search of big payouts that their efforts might be better directed elsewhere. On November 1, Judge Peter Wilson on the Orange County Superior Court resoundingly rejected the latest lawsuit claiming pharmaceutical companies should pay hundreds of millions of dollars for the problems suffered in California because of addiction to illegal opioids. In a detailed 46-page tentative decision, Judge Wilson methodically destroyed the arguments that pharmaceutical companies were guilty of false advertising, unfair competition, or public nuisance.
The public nuisance claims failed because, as Judge Wilson noted, the Federal Food and Drug Administration approved prescription opioid medications knowing that there was a risk that some people might abuse the drug. Nonetheless, the FDA decided that the “‘social utility’ of appropriately prescribed opioids outweighed the ‘gravity of the harm inflicted’ by them.” Prescription pain medications are meant to alleviate pain and suffering and there is simply no doubt that, as Judge Wilson found, “there are patients for whom prescription opioids are medically appropriate.” Nor was the FDA alone in this determination. The California Legislature enacted the Pain Patient’s Bill of Rights in 1997 to ensure that doctors could prescribe opioid pain relievers where medically appropriate.
But the plaintiffs argued that none of this should matter because the pharmaceutical companies engaged in false advertising that caused increased prescriptions that led to the opioid crisis. Judge Wilson rejected this claim because “medically appropriate prescriptions” simply cannot be the basis of a public nuisance claim. The pharmaceutical companies are not the ones prescribing the pain relievers. That person is the doctor treating a patient who is experiencing pain. There were no claims that the doctors’ prescriptions were not medically appropriate—indeed, no doctors were being sued. Judge Wilson noted “There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need.” Appropriately, Judge Wilson refused to second-guess the patients who were in pain and the doctors who were doing their best to treat that pain.
The trial court also refused to second-guess the FDA and the California Legislature on this issue. The FDA refused to impose limits on prescription opioids even after the extent of the opioid crisis was well-known. Further, the California Legislature made clear its intent to encourage doctors to provide their patients “with adequate pain management.”
This is a far cry from the result in Oklahoma. There, the trial judge simply ignored the patients’ need for pain medication and the assessment of that need by trained medical professionals. The trial judge also ignored the regulatory assessment by the Food and Drug Administration, the federal agency whose job it is to ensure that drugs are safe and effective for their intended use.
Judge Wilson’s careful examination of state and federal law led to a well-reasoned opinion rejecting all of the claims by local government attorneys (and their plaintiff-lawyer allies). No massive payout for engaging in lawful activity. What a refreshing decision. Thank you Judge Wilson!