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The Little Known Legal Doctrine Making Big Pharma Pay for the Opioid Crisis

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28.08.2019

John Culhane is distinguished professor of law at Delaware Law School, where he teaches courses in constitutional and family law.

On Monday, a state court judge in Oklahoma ruled that Johnson & Johnson must pay $572,102,028 to compensate the state for expenses related to combating the opioid epidemic. The decision was based on an expansive but reasonable reading of the state’s public nuisance law—an interpretation that demonstrates the explosive potential of this little-understood legal theory.

Judge Thad Balkman’s decision does two things. First, it provides a roadmap for other courts to use in upcoming litigation against other pharmaceutical companies involved in the manufacture, sale and distribution of these addictive drugs. The reckoning is overdue. States should continue to be aggressive about deploying public nuisance law in the future. Second, it puts the scare into other Big Pharma companies that had a hand in creating and then fueling the crisis. Indeed, just one day after this blockbuster decision, news broke that the company most associated with the opioid crisis, Purdue Pharma, was willing to offer between $10 and $12 billion to settle the claims against them.

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Although public nuisance is not a well-known legal doctrine, it is both simple and mighty. States can pass any law designed to safeguard the health, safety and welfare of their residents. This “police power” allows states to bring suits against any person or other legal entity that presents a public nuisance—a menace to the public’s health. All states have methods of dealing with public nuisances, either by statute or through judicial decisions. Oklahoma’s statute is broad, yet typical. A nuisance is “unlawfully doing an act … which … injures or endangers the comfort, repose, health, or safety of others.”

The law clearly applies in this case. Having........

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