“This court has not extended the public nuisance statute to the manufacturing, marketing, and selling of products, and we reject the State’s invitation to expand Oklahoma’s public nuisance law.”

— Oklahoma Supreme Court, State v Johnson & Johnson

The Oklahoma Supreme Court hasn’t been the cause of much celebration in recent years. That changed yesterday when Oklahoma’s highest court overruled the dangerous 2019 judgement that declared Johnson and Johnson’s opioid marketing efforts to be a “public nuisance.” The trial court ordered the company to pay Oklahoma’s state government hundreds of millions of dollars to abate said nuisance. The opioid manufacturers appealed (the 1889 Institute submitted a brief in support of their claims). Yesterday, the original verdict was roundly rejected when the Supreme Court held that the opioid manufacturers did not create a public nuisance. This was no technicality with a chance for a do-over, but rather a square rejection of the lower court’s legal reasoning on the merits of the case.

While the outcome of a lawsuit tends to make headlines, it’s the underlying theory that really matters in the long run. In this case, the justices got both the outcome and the theory largely right. The biggest problem with the trial court’s original verdict was that it opened the door to future liability for businesses that had truly done nothing wrong. The Supreme Court slammed that door closed. Legislators should follow suit by codifying the decision in statute, ensuring clarity on the matter of public nuisance for future generations.

It might be easy to look at the opioid crisis and come to the conclusion that whoever caused it did in fact meet the public nuisance’s statutory definition of “creating a condition which annoys, injures or engages the comfort, repose, health, or safety of others,” while also “affecting an entire community or large group.” However, those words should be read in their historical context, which rules out the application of public nuisance to the opioid case for several reasons. The most important reason is that the rejected trial court opinion allowed the state to skip over proving who was actually responsible for the crisis.

America’s tradition of justice requires that only responsible parties be made to pay, and only to the extent to which they are responsible. Public nuisance looked like an attractive way for the State to proceed because it appeared possible to avoid showing of responsibility; instead, under the state’s theory, the court would have jumped directly to how much money Johnson & Johnson would owe the state. If the powerful “big pharma” lobby can be pummeled by such a novel approach to an ancient doctrine, what chance do mom and pop businesses have?

Regardless of how one feels about Johnson & Johnson, opioids as a group, or “big business” generally, allowing a lawsuit that requires so little proof of liability to result in a massive transfer of money ought to be offensive. While opioids were in the crosshairs this time, the same stunt has been tried against the makers of lead paint, guns, and fossil fuels. Many believe that unhealthy foods and sodas would have been next on deck if this ruling had been allowed to stand. Eventually, all businesses would have come to the realization that Oklahoma wasn’t a safe place to operate, inciting a mass exodus that would recall the days of the Okies and the dustbowl.

Still, there is work left to do. Justice Kuehn wrote a concurring judgement in which she agreed with the majority, and cautioned Oklahoma’s legislature to clarify the public nuisance statute to ensure that even a poor student of legal history will have no choice but to admit that yesterday’s ruling is correct. A legislative solution should do four things, as laid out in an 1889 paper:

  1. Restore the traditional requirement that public nuisance be connected to the use of land;

2. Restore the traditional limitation that only interference with collective public rights can give rise to a public nuisance claim — several private rights do not combine to form a public right, instead the right must be one held collectively;

3. Restore the traditional requirement that the defendant actually have the ability to cure the problem (that is, has legal and physical control over the source or “instrumentality” of the harm); and

4. Reaffirm that the proper remedy for public nuisance is abatement, not monetary payment. Public nuisance suits traditionally had two remedies: making a losing defendant undo the condition causing the harm, and enjoining him from repeating the actions that cause the harm.

In its opinion yesterday, the majority addressed all four concerns. It departed from 1889’s recommendations regarding the use of land. The court found that this traditional limitation was read out of the common law before the statute was passed. This is the lowest priority fix.

If the issues of public rights, control of the instrumentality of harm, and proper remedy are all properly considered, the risk of public nuisance abuse is greatly reduced. The court yesterday affirmed that cash payments are an improper remedy for public nuisance. It restored the traditional requirements of control of the instrumentality, and that a public right be at stake in the case.

These three issues, taken together, go a long way toward restoring the rule of law and a stable business environment to Oklahoma. If the legislature codifies this decision, to remove it from the hands of future judges who fail to read the law’s history into its plain meaning, it will cement these protections for all Oklahomans, and banish once and for all the specter of liability without proof of causation. Oklahoma cannot be a great state to do business in without such protection.

Mike Davis is Research Fellow at 1889 Institute. He can be reached at [email protected].

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.