November 10, 2021
By Timothy Sandefur

The Oklahoma Supreme Court yesterday threw out a lawsuit against a group of pharmaceutical companies that made and sold painkillers throughout the past thirty-odd years, agreeing with the Goldwater Institute that the case would have essentially allowed people to sue anyone for anything at any time.

As we argued in our brief, the legal theory behind the lawsuit—called “public nuisance”—has been stretched to allow people to sue businesses for doing things that are legal, and to sue them many years after the fact, based on bad social consequences from their businesses. For instance, courts in some states have allowed lawsuits against gun manufacturers, on the theory that selling guns contributes to street crime. Other courts have allowed people to sue paint companies for making and selling lead paint back when that was legal. Creative lawyers have even filed lawsuits against oil companies and car manufacturers for contributing to global warming, and fast food companies for contributing to obesity. But the reality is that no lawyer knows what “public nuisance” actually means, and a concept that’s so vague cannot satisfy the requirements of due process, which requires that people have at least a general idea of what the law forbids and allows.

The Oklahoma case alleged that pharmaceutical companies engaged in marketing tactics that “downplayed” the risk that using opioids could lead to addiction. Yet as we pointed out in our friend of the court brief, “downplaying” cannot be defined—and is actually free speech protected by the First Amendment. Combatting prescription drug abuse is certainly a worthy goal. But punishing companies for exercising their free speech rights is not only unconstitutional, but also bad for patients—because it will inevitably lead to people getting less of the pain medicine they need. Depriving suffering patients of pain medicine is not compassion.

Nevertheless, an Oklahoma trial judge found Johnson & Johnson and other businesses guilty and imposed $465 million in damages against them for making and selling legal medicines. Yesterday’s state supreme court ruling reversed that. “Erasing the traditional limits on nuisance liability leaves Oklahoma’s nuisance statute impermissibly vague,” it said. “Without [objective] limitations, businesses have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products, i.e., will a sugar manufacturer or the fast food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution.”

Justice Dana Kuehn went further, urging state lawmakers to change the statute to prevent lawsuits like this in the future. “I am concerned that, because some believe the statutory language is vague, it leads to any interpretation of what a public nuisance can be, including marketing a product,” she wrote. “The Legislature should consider reexamining the public nuisance statute to prevent further misapplications. If the public nuisance law can be broadly interpreted as is suggested by the Appellants, I believe the law will become the newest fictional shape-shifting monster.”

The decision is a welcome response to rulings in California and other places that have expanded the amorphous notion of “public nuisance” into a legal theory that lets anybody to sue anyone over anything at any time. A law this subjective and incomprehensible is really no law at all—and that sets the stage for a predatory free-for-all that, in the end, hurts our most vulnerable citizens by depriving them of the care they need.

Thanks to attorney Adam Doverspike—a member of our American Freedom Network—for helping us with this brief!

You can read more about the case here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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