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Landmark Opioid Trial Hinges on a Legal Term

What is a 'public nuisance'?
By John Johnson,  Newser Staff
Posted May 28, 2019 1:08 PM CDT

(Newser) – A landmark trial got underway Tuesday in Oklahoma—the first big test of whether a state can hold drug manufacturers responsible for the opioid crisis, reports the Wall Street Journal. In opening arguments, Attorney General Mike Hunter said these painkillers have led to the "worst manmade public health crisis" in US history, per the AP. Details and developments, including how the legal definition of a "public nuisance" will be crucial:

  • The players: Oklahoma is going after Johnson & Johnson and subsidiaries in this trial. Previously, Oxycontin maker Purdue Pharma (owned by the Sackler family) agreed to a $270 million settlement with the state to avoid trial; and just this weekend, Teva Pharmaceutical agreed to a settlement of $85 million. That leaves only Johnson & Johnson left in the trial, which will be decided by a judge and not a jury.
  • It's personal: Pew reports that two of the attorneys for Oklahoma know well the dangers of opioids. Michael Burrage lost his niece to an overdose and Reggie Whitten's son was addicted when he died in a motorcycle accident. Whitten's nephew also committed suicide over his addiction.

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  • A key term: The state is arguing that Johnson & Johnson created a "public nuisance" that will cost up to $17.5 billion to fix. The company, though, says the state is improperly using the term, which is more typically raised in property disputes. "This is an interesting twist on the idea of public nuisance," Virginia law professor Carl Tobias tells CNN.
  • Company's view: "The State ignores this well-established law and now argues that public nuisance allows them to compel any party allegedly contributing in any measure to a social problem to fund all programs that state administrators dream up to address it," J&J says in a statement. "This is not and should not be the law."
  • The stakes: The reason this trial is being so closely watched is that approximately 2,000 lawsuits have been brought by other states and municipalities against drug companies, and the outcome in Norman, Oklahoma, could set a precedent. If the state wins, Johnson & Johnson might have to pay billions, reports NPR, an outcome that could prompt settlements in the pending cases.
  • More coming: Barring a settlement, a huge federal trial is scheduled to begin in Ohio in October, and that one will involve Purdue Pharma, notes Politico. Meanwhile, no fewer than 46 states have sued Purdue Pharma, according to Pew. That's why the Oklahoma case looms large. "We'll all be seeing what evidence is available, what evidence isn't available and just how convincing that evidence is," Stanford law professor Nora Freeman Engstrom tells NPR.
(Read more opioids stories.)

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