NORMAN — Attorneys for a top opioid manufacturer warned Monday that state attorneys are interpreting Oklahoma’s public nuisance law so broadly that it could leave other industries vulnerable, too.
Steve Brody, an attorney for pharmaceutical company Johnson & Johnson, said Monday that Attorney General Mike Hunter’s “radical public nuisance theory” could leave all commercial activity subject to the same scrutiny. He said courts nationwide have rejected similar efforts to extend nuisance laws. They’re typically used to govern things like decaying buildings or noisy and smelly gas stations that threaten a church, he said.
“It is limitless,” he said of the interpretation. “It is impossible to imagine anything happening would not be subject to the state’s public nuisance law.”
Brody tried unsuccessfully to convince Thad Balkman, a Cleveland County district judge, to rule in favor of Johnson & Johnson and end the state’s multi-billion-dollar lawsuit against the company and its subsidiaries.
If the state’s interpretation is allowed to proceed, Brody said, nothing would stop litigants from going after fast food manufacturers for causing obesity or heart attacks, oil and gas companies for contributing to global warming or gun manufacturers for shootings.
“That’s the risk,” he said. “That’s the scope, and it requires absolutely no imagination, your Honor, to take what is being (proposed) here … to the next step to having it applied to industries far and wide to anywhere there are public health issues.”
A short time after the arguments wrapped up, Balkman ruled that the case should proceed.
The state’s ongoing lawsuit against Johnson & Johnson entered its seventh week in Balkman’s court. Hunter’s team is attempting to prove that company and its subsidiaries helped create a public nuisance by using false or misleading opioid painkiller advertising.
Hunter has accused several drug companies and their subsidiaries of contributing to overdoses, addictions and deaths. He is seeking billions to ease the state’s opioid epidemic.
Johnson & Johnson has denied wrongdoing.
Balkman will ultimately have to decide whether the burden falls on Oklahoma taxpayers or if it’s the company’s fault.
Attorney Brad Beckworth, whose legal team is representing Hunter, said federal and state leaders stand unified behind the lawsuit, including billionaire Harold Hamm, the CEO of Continental Energy. Beckworth showed the court a letter of support Hamm reportedly sent to Gov. Kevin Stitt.
“We’re on the right side of this one,” he said.
Beckworth said the pharmaceutical company is just trying to scare people and upset energy producers.
“But it gets worse,” he said. “Making a claim that this opioid epidemic is akin to childhood obesity. I mean really?”
“They will do anything to make money, including coming to this courtroom and making something up (like) comparing this epidemic to obesity,” he said.
Beckworth also complained that the pharmaceutical giant has launched a public relations campaign to try to shape Oklahomans’ opinion in its favor.
He said that 65 percent of all prescription opioid pills don’t get used, with abuse from oversupply. Opioid abusers then turn to heroin to get their fix, he said.
“There wasn’t a heroin problem until we started over-prescribing opioids, and (then we started) cutting the supply off,” he said.
He said the state is correctly interpreting the public nuisance statute.
“We’ve never had an opioid crisis before,” Beckworth said. “We’ve never had a company create a mutant poppy.”
Janelle Stecklein covers the Oklahoma Statehouse for CNHI’s newspapers and websites. Reach her at email@example.com.