State Supreme Court to decide opioid appeals

The Oklahoma Supreme Court will retain jurisdiction of appeals filed in a case in which a $465 million verdict was rendered against opioid manufacturer Johnson & Johnson.

The decision to review the case was announced Thursday.

Justices had the option of first referring the case to the Oklahoma Court of Civil Appeals for review, but chose to handle the appeals directly. That could be an indication of the importance they attach to issues raised on appeal. It also means the appeals may be resolved quicker, although no decision is expected for at least several months.

Opposing attorneys for both the state and Johnson & Johnson have appealed Cleveland County District Judge Thad Balkman's verdict, but for different reasons and in hopes of achieving vastly different results.

Johnson & Johnson is seeking to have the entire verdict overturned. One of the company's main arguments is the judge erred when he ruled that Oklahoma's public nuisance

law applies to this case.

“The judgment ... rests on an unprecedented interpretation of Oklahoma public nuisance law, with grave implications for all businesses operating in the state,” Johnson & Johnson attorneys argued in their appeal. “Contrary to a century of Oklahoma caselaw tying public nuisance liability to property use and to historically recognized nuisances per se, the district court ruled that the marketing and sale of lawful goods can constitute a public nuisance so long as a factfinder concludes it affects a large number of Oklahomans.”

Attorneys for the state contend Judge Balkman was right in ruling that Oklahoma's public nuisance laws apply in this case.

However they contend the judge erred by limiting the amount of money that Johnson & Johnson would be required to pay to the

amount witnesses for the state testified would be needed to pay for the first year of abatement efforts.

The state's witnesses testified it could take 20 to 30 years to abate the opioid epidemic and abatement efforts could cost as much as $17 billion. The state's attorneys want the Supreme Court to rule the state can come back to Judge Balkman year after year and ask for more money, so long as the state can show the crisis hasn't been fully abated.

“The State ... lodges this appeal to ensure the People of Oklahoma receive the abatement remedy the law and the evidence demand — one that actually and fully abates the public nuisance the Johnson & Johnson Defendants caused,” attorneys for the state said in their appeal.

The state's attorneys discussed the importance of the state Supreme Court hearing their appeal when they filed it, stating, “this case proved that thousands of Oklahomans across the State have suffered and continue to suffer as a result of Johnson &

Johnson's efforts to mislead, deceive, and convince doctors and patients that these dangerous narcotics were safe for long-term, every-day uses. ... If ever there was a case of such major public significance as to warrant immediate attention from this Court, it is this one.”

The order the state Supreme Court issued Thursday states it is retaining jurisdiction of the appeal pursuant to the request made by Johnson & Johnson. The order makes no mention of the appeal filed by state attorneys. However, that doesn't mean the court won't also consider issues the state raised on appeal — especially since the court frequently rules on motions in the order they were received and Johnson & Johnson filed its appeal several days before the state.

In Judge Balkman's final order issued in November, he noted more than 2,100 Oklahomans died from unintentional opioid prescription overdoses from 2011-2015.”It was undisputed that in 2015, over 326 million opioid pills were dispensed to Oklahoma

residents, enough for every adult to have 110 pills,” the judge wrote. “Defendants promoted their specific opioids using misleading marketing. Among other things, they sent sales representatives into Oklahoma doctors' offices to deliver misleading messages, they disseminated misleading pamphlets, coupons, and other printed materials for patients and doctors, and they misleadingly advertised their drugs over the internet.”

Judge Balkman explained his decision to limit the amount of his verdict to $ 465 million, stating: “though several of the State's witnesses testified that the plan will take at least 20 years to work, the State did not present sufficient evidence of the amount of time and costs necessary, beyond Year One, to abate the Opioid Crisis.”

Johnson & Johnson's Supreme Court appeal is complicated, citing more than 30 reasons the company believes the verdict should be overturned or the amount the company has been ordered to pay should be lowered.