Opioids, Guns and ‘Public Nuisance’ Lawsuits


    Opioid medications are like guns. Both are useful and lawful but prone to abuse and potentially lethal. The Oklahoma Supreme Court last week struck down a $465 million opioid award against Johnson & Johnson based on a legal theory that has previously been tried and failed against guns—that the product was a “public nuisance.” Commentators described the Oklahoma decision as “shocking,” but it was predictable. Yet it leaves the matter far from resolved.

    Opioid litigation has proceeded like a locomotive in part because of Judge Dan Aaron Polster, a federal jurist in Ohio who has been given control of some 2,000 federal cases from across the country under the multidistrict litigation system. The plaintiffs generally allege that the industry flooded states with prescription opioids and caused an epidemic of addiction. Forty-eight states, including Oklahoma, have brought lawsuits based on the same theory. Judge Polster pushed drug makers to settle before clearly establishing legal liability. He now presides in a trial that could hold pharmacies liable for opioid abuse.


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