Pain-killer: Oklahoma Limits Public Nuisance Liability

January 18, 2022 / CM Reports / Writing and Speaking

by Paul V. Esposito

Some adages can use refinement. There’s the one about the only certainties in life being death and taxes. Right with them is pain, which for most people comes sooner than the other two. It can be so cruelly relentless that its victims will do most anything to rid themselves of it.

Like taking opioids, then taking more. The overuse of prescription opioids has caused its own pain—the pain of addiction. And for many governments and health care providers, it has caused enormous financial pain they can’t get on top of.

State and municipal governments are fighting back, hoping to recoup millions spent in services for the addicted. But as Oklahoma recently learned, the road to financial relief is not an easy one. State ex rel. Hunter v. Johnson & Johnson, 2021 OK LEXIS 60.


From the mid-1990s until 2015, J&J marketed a number of prescription opioid medications in Oklahoma. Although J&J only had a 3% market share, it was enough to attract the attention of Mike Hunter, the state’s attorney general. He filed suit against J&J and two other manufacturers for deceptive marketing of opioids in Oklahoma. The state settled with the two others and dismissed all claims against J&J except one. The state contended that J&J’s failure to warn of the dangers of opioids and its active promotion of them violated Oklahoma’s public nuisance statute.

After a bench trial, the district court ruled that J&J violated the statute by conducting “false, misleading, and dangerous marketing campaigns” about prescription opioids. It ordered J&J to pay $465 million, the one-year amount needed to fund the state’s abatement program. The court did not give J&J a credit for the state’s settlements with the other manufacturers. Nor did the court apportion damages based on J&J’s market share. Instead, it held J&J responsible to abate all harms done by all opioids, not just those sold by J&J.

In a split decision, Oklahoma’s Supreme Court ruled that the district court took the public nuisance statute too far.


The majority traced public nuisance law from its criminal-law roots to its evolution into a common law tort. Public nuisance involves conduct performed at an actor’s location that harms the public, e.g., creating excessive noises, emitting foul odors, obstructing public travel and navigation. Like other states, Oklahoma has codified the common law, limited to conditions that damage or annoy most or all members of a community, though not always equally. Importantly, the statute only covers criminal or property-based conduct. The Supreme Court had never applied it to the manufacture or marketing of lawful products.

It refused to make an exception for prescription opioids. Public nuisance and product liability present two distinct claims not intended to overlap. Nuisance law is “fundamentally ill-suited to resolve claims against product manufacturers.”

The court offered three reasons. First, product manufacture and distribution rarely violate a public right. Doing so requires more than aggregating the private rights of many injured people. A public right is a right to a public good shared by the public at large, e.g., clean water. But despite its claim that J&J had interfered with an alleged public right of health, the state was not seeking damages for a communal injury. Allowing a public nuisance suit against products lawfully sold would be too expansive.

Second, a manufacture lacks control over a product once sold. J&J lacked control over wholesale distribution, government regulation, physician prescription, pharmacists’ dispensing, and patient misuse. And it certainly lacked control over its competitors’ products. Because manufacturers lack post-sale control, they cannot abate a nuisance—the remedy sought by the state against J&J. Even if J&J paid for the state’s abatement plan, it could not abate the problem because the problem is not the opioids themselves. The problem is their distribution and use.

Third, creating public nuisance liability would make manufacturers perpetually liable for their products. Public nuisance statutes can sidestep statutes of limitations, which can make manufacturers liable for distribution of products decades earlier.

In the end, the Court feared that extending public nuisance law to lawful products would create a monster allowing nuisance law to swallow up tort law. “[W]ill a sugar manufacturer or a 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.” Under the J&J decision, not in Oklahoma.

Learning Point: The J&J decision is certainly welcome news for a variety of manufacturers of legal products. But it’s also good for society as a whole. Left unchecked, nuisance law can be so far reaching that unexpected defendants can be hit. If a car manufacturer may be held liable under public nuisance law for creating a health hazard, what about a car user? May a state sue parents for feeding their children foods that contribute to the obesity problem? Nuisance law can become a problem far more painful than anyone ever imagined. The Oklahoma Supreme Court wisely let traditional tort law govern tort damages. Here’s hoping that other states follow the Court’s lead.

  • Chicago

    Illinois 60603

    10 South LaSalle Street

    Chicago, Illinois 60603

    T: 312.855.1010 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • New York

    New York 10005

    28 Liberty Street 39th Floor

    New York, New York 10005

    T: 212.805.3900 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Carl M. Perri

  • Mission Viejo

    California 92691

    27285 Las Ramblas

    Suite 200

    Mission Viejo, California 92691

    T: 949.260.3100 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Florham Park

    New Jersey 07932

    100 Campus Drive

    Florham Park, New Jersey 07932

    T: 973.410.4130 TF: 800.826.3505 F: 973.410.4169 Office Managing Partner: Carl M. Perri

  • Michigan City

    Indiana 46360

    200 Commerce Square

    Michigan City, Indiana 46360

    T: 219.262.6106 TF: 800.826.3505 F: 312.606.7777 Office Managing Partners: Paige M. Neel, Kimbley A. Kearney

  • Milwaukee

    Wisconsin 53202

    250 E. Wisconsin Avenue

    Suite 1800

    Milwaukee, Wisconsin 53202

    T: 414.279.5525 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: James M. Weck

  • Stamford

    Connecticut 06902

    68 Southfield Avenue

    2 Stamford Landing Suite 100

    Stamford, Connecticut 06902

    T: 203.921.0303 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Matthew J. Van Dusen

  • Tampa

    Florida 33609

    4830 West Kennedy Boulevard, One Urban Center

    Suite 600

    Tampa, Florida 33609

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick Co-Managing Partner: Kelly M. Vogt

  • San Francisco

    California 94111

    100 Pine Street

    Suite 1250

    San Francisco, California 94111

    T: 415.287.2744 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Houston

    Texas 77019

    2929 Allen Parkway

    American General Center, Suite 200

    Houston, Texas 77019

    T: 346.229.4612 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Dallas

    Texas 75201

    325 N. Saint Paul Street

    Suite 3100

    Dallas, Texas 75201

    T: 469.942.8635 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Boca Raton

    Florida 33434

    7777 Glades Road

    Suite 405

    Boca Raton, Florida 33434

    T: 561.765.5305 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick Co-Managing Partner: Kelly M. Vogt