Cleveland County District Court Judge Thad Balkman ruled that Johnson & Johnson should pay $572 million to "abate" a "public nuisance" the company created in Oklahoma by minimizing the hazards and overselling the benefits of prescription opioids. As relevant here, the statute on which Balkman relied says a public nuisance "consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others" or "in any way renders other persons insecure in life, or in the use of property."
Although the prototypical public nuisance involves using your property in a way that negatively affects your neighbors, Balkman argues that "there is nothing in this text that suggests an actionable nuisance requires the use of or a connection to real or personal property." Alternatively, he says, "in the event Oklahoma's nuisance law does require the use of property, the State has sufficiently shown that Defendants pervasively, systematically and substantially used real and personal property, private and public, as well as the public roads, buildings and land of the State of Oklahoma, to create this nuisance."
In other words, Johnson & Johnson's marketing practices required various uses of property in Oklahoma, so the bad consequences ascribed to them can reasonably be viewed as a public nuisance. The company's representatives traveled on "public roads" when they visited doctors, for example, so if they misled those doctors about the dangers of prescription opioids during those visits, that satisfies any requirement that a public nuisance involve a harmful use of property. Yet this understanding of public nuisances is broad enough to cover all manner of torts that are usually conceived as qualitatively different.
https://reason.com/2019/08/27/the-o...-on-a-sweeping-definition-of-public-nuisance/
Although the prototypical public nuisance involves using your property in a way that negatively affects your neighbors, Balkman argues that "there is nothing in this text that suggests an actionable nuisance requires the use of or a connection to real or personal property." Alternatively, he says, "in the event Oklahoma's nuisance law does require the use of property, the State has sufficiently shown that Defendants pervasively, systematically and substantially used real and personal property, private and public, as well as the public roads, buildings and land of the State of Oklahoma, to create this nuisance."
In other words, Johnson & Johnson's marketing practices required various uses of property in Oklahoma, so the bad consequences ascribed to them can reasonably be viewed as a public nuisance. The company's representatives traveled on "public roads" when they visited doctors, for example, so if they misled those doctors about the dangers of prescription opioids during those visits, that satisfies any requirement that a public nuisance involve a harmful use of property. Yet this understanding of public nuisances is broad enough to cover all manner of torts that are usually conceived as qualitatively different.
https://reason.com/2019/08/27/the-o...-on-a-sweeping-definition-of-public-nuisance/