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Ending the Epidemic of Public-Nuisance Litigation

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Director at Public Health and American Well-Being Initiative
Joel M. Zinberg, M.D., J.D. is the Director of the Public Health and American Well-Being Initiative at Paragon Health Institute, and a senior fellow with the Competitive Enterprise Institute. A native New Yorker, he recently completed two years as General Counsel and Senior Economist at the Council of Economic Advisers in the Executive Office of the President.

The opioid crisis has spawned a rash of litigation, with thousands of pending state and federal cases threatening to penalize legitimate prescription opioid makers. But a welcome decision by the Oklahoma supreme court last week challenges the legal basis for nearly all of the lawsuits, which attempt to treat opioid marketing as a “public nuisance.”

Injured parties have a legal right to obtain redress from a public nuisance, which is defined as an “unreasonable interference with a right common to the general public.” Usually, public-nuisance actions are brought against alleged environmental wrongs such as noxious smells, loud noises, and pollution.

But in 2017, the state of Oklahoma claimed in state court that three prescription opioid manufacturers created a public nuisance through deceptive marketing that overstated opioids’ benefits and downplayed their dangers.

Two years later, two of the three companies settled with Oklahoma — Purdue Pharma for $270 million, and Teva for $85 million — leaving Janssen, a Johnson & Johnson subsidiary, as the sole defendant. But J&J only manufactured a mere 3 percent of all prescription opioids in Oklahoma. What’s more, only two of their products — Duragesic fentanyl patches and Nucynta pills — were designated by the Drug Enforcement Administration as Schedule II drugs with “high potential for abuse,” and they accounted for less than 1 percent of Oklahoma opioid prescriptions.

Read the full article in National Review.

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