Wake Forest Law Review
7Oct

The Overregulation of Syringe Service Programs: How West Virginia Legislators Are Exacerbating the Opioid Crisis on the Battleground of the Epidemic

Categories: Current Issues Blog
Comments Off on The Overregulation of Syringe Service Programs: How West Virginia Legislators Are Exacerbating the Opioid Crisis on the Battleground of the Epidemic

By Emily Wilmink

While the COVID-19 pandemic has consumed the field of public health since its onset in 2020, substance use disorder and the opioid crisis have continually plagued the United States for many years.  Substance use disorder is a disease that “leads to an inability to control the use of a legal or illegal drug or medication.”[1]  Since 1999, nearly 841,000 people have died from drug overdose, and as of 2019, 72.9% were opioid-related drug overdose deaths.[2]  

Within this national health crisis, West Virginia leads the country in opioid-involved overdose deaths, with a rate of 42.4 deaths per 100,000 people in 2018.[3]  Additionally, compared to the average national rate of 51.4 prescriptions per 100 people, West Virginia providers wrote 69.3 opioid prescriptions per 100 people, once again ranking the state as the highest rate in the country for 2018.[4]  Researchers have cited “sociocultural factors, a depressed economy, lack of education, and a high rate of prescribing and dispensing of prescription opioids” as various reasons for the ongoing opioid epidemic in West Virginia.[5]  To combat the opioid crisis in West Virginia, state legislators recently passed Senate Bill 334[6] to regulate Syringe Service Programs.[7] However, this bill will likely exacerbate the epidemic in the state.

In general, syringe service programs provide sterile injection equipment to reduce the spread of needle transmitted diseases, such as hepatitis C (“HCV”) and human immunodeficiency virus (“HIV”), amongst those who engage in improper injection techniques.[8]  Syringe service programs also provide participants access to other resources, such as “vaccination, testing, linkage to infectious disease care and substance use treatment, and access to and disposal of syringes and injection equipment.”[9]  These programs have successfully prevented the spread of infection throughout the country, leading to an estimated 50% reduction in HIV and HCV, and a two-thirds transmission reduction when combined with medication-assisted treatment.[10]

Regardless of such promising evidence about transmission reduction, West Virginia legislators proceeded to implement more restrictions on the state’s syringe service programs,[11] which will likely exacerbate the opioid epidemic in the state.  Specifically, Senate Bill 334 requires participants to provide West Virginia identification before using any of the services from these programs in the state.[12]  Identification requirements not only create a barrier between the in-state participants and providers, but they also create a barrier between out-of-state participants who also seek the help of the program providers.[13]  Senate Bill 334 also requires existing syringe service providers to offer a “full array of harm reduction services,”—including “wellness checks, wound treatment from needle sticks, screening from communicable diseases, vaccination ability and counseling”—and if they do not offer the full range of these services, the providers are required to shut down their exchange service program altogether.[14]  Lastly, the bill requires that syringe service programs must receive a license from the Office of Health Facility Licensure and Certification in West Virginia before they can provide assistance to those participants with substance use disorder.[15]  All of these restrictions discourage participation in the programs, threaten to cut off avenues through which participants could access clean injection equipment, and further stymie the programs’ ability to timely respond to the participants’ needs.  As a result, Senate Bill 334 will likely foster the improper exchange of syringes, exacerbate the spread of infectious diseases like HIV or HCV, and lead to more opioid-involved deaths in a state that is already deeply wounded from such realities.

The bill’s restrictions on syringe service programs not only present the aforementioned public health concerns, but the restrictions also present various legal concerns that must be addressed in turn.  In Milan Puskar Health Right v. Crouch,[16] program providers claimed Senate Bill 334 violated their procedural due process rights, equal protection rights, and violated the constitution of West Virginia.[17]  The providers also raised policy concerns, arguing that the bill would “result in fewer people accessing health services and fewer opportunities to prevent the spread of diseases including HIV, endocarditis, and Hepatitis C.”[18]  However, the court determined the providers could only succeed on their equal protection claim.[19]  

Regarding the equal protection claim, the providers argued that Senate Bill 334 was discriminatory in nature because it required existing providers to “cease and desist all operations unless it offers a ‘full array of harm reduction services,’”[20] while the bill exempted “new providers from ‘compliance with the provisions’ . . . until January 1, 2022” [21] and did not mention new providers having “harm reduction services or a license.”[22]  The court held that the bill may be read to discriminate between new and existing providers.”[23]  Because the state legislators did not offer a “rational basis” to justify such discrimination, the court concluded that the bill might violate the equal protection rights of the existing providers.[24]  The potential discrimination between new and existing providers exemplifies how the bill overregulates syringe service programs in West Virginia.  The different standards that new and existing providers must meet creates confusion within the functionality of such programs and may undermine the mission to prevent the spread of HIV or HCV by providing resources to those who suffer from substance use disorder.  Therefore, Milan Puskar Health Right v. Crouch highlights another reason why Senate Bill 334 will likely worsen the opioid crisis in West Virginia.

Ultimately, the overregulation of syringe service programs in West Virginia establishes divergent standards that different programs must meet to provide services to its participants.  Without a uniform approach to follow, these programs may become more chaotic and unable to effectively provide services to participants with substance use disorder.  Therefore, Senate Bill 334 will likely exacerbate opioid-involved deaths and simultaneously increase the spread of opioid related infectious diseases, such as HIV or HCV.  As the battleground for the opioid crisis, West Virginia must do better to implement effective solutions to eradicate the epidemic that has plagued the nation for far too many years.

[1] Drug Addiction (Substance Use Disorder), Mayo Clinic (Oct. 26, 2017), https://www.mayoclinic.org/diseases-conditions/drug-addiction/symptoms-causes/syc-20365112.

[2] Drug Overdose Deaths, Ctrs. for Disease Control & Prevention (Mar. 3, 2021), https://www.cdc.gov/drugoverdose/deaths/index.html.

[3] Opioid Summaries by State, Nat’l Inst. on Drug Abuse (Apr. 16, 2020), https://www.drugabuse.gov/drug-topics/opioids/opioid-summaries-by-state.

[4] Id.

[5] Rachel Merino et al., The Opioid Epidemic in West Virginia, 38 The Health Care Manager 187, 187 (2019).

[6] An Act Establishing License Application Process for Needle Exchange Programs, SB 334, 2021 Reg. Sess. (Apr. 10, 2021), https://www.wvlegislature.gov/Bill_Text_HTML/2021_SESSIONS/RS/signed_bills/senate/SB334%20SUB1%20ENR_signed.pdf.

[7] Brad McElhinny, Legislature Passes a Syringe Exchange Bill with More Restrictions, Including ID Requirement, MetroNews: The Voice of West Virginia (Apr. 10, 2021, 10:23 PM), https://wvmetronews.com/2021/04/10/senate-passes-a-syringe-exchange-bill-with-more-restrictions-including-id-requirement/.

[8] Syringe Services Programs (SSPs), Ctrs. for Disease Control and Prevention, https://www.cdc.gov/ssp/syringe-services-programs-factsheet.html (May 23, 2019).

[9] Id.

[10] Id.

[11] Brad McElhinny, Justice Signs Syringe Exchange Bill, Despite Health Leaders’ Push for a Veto, MetroNews: The Voice of West Virginia (Apr. 15, 2021, 5:29 PM), https://wvmetronews.com/2021/04/15/justice-signs-syringe-exchange-bill-despite-health-leaders-push-for-a-veto/.

[12] An Act Establishing License Application Process for Needle Exchange Programs, SB 334, 2021 Reg. Sess. (Apr. 10, 2021), https://www.wvlegislature.gov/Bill_Text_HTML/2021_SESSIONS/RS/signed_bills/senate/SB334%20SUB1%20ENR_signed.pdf.

[13] Letter from Loree Stark, Legal Director, American Civil Liberties Union of West Virginia, to Governor Jim Justice (Apr. 14, 2021), https://www.acluwv.org/sites/default/files/field_documents/aclu-wv_msj_letter_re_334_constitutional_concerns.pdf.

[14] McElhinny, supra note 7.

[15] W. Va. Code § 16-64-2 (2021).

[16] No. 3:21-0370, 2021 U.S. Dist. LEXIS 132069 (S.D. W. Va. July 15, 2021).

[17] Id. at *4.

[18] Id. at *4–5.

[19] Id. at *7.

[20] Id. at *17.

[21] Id. (quoting W. Va. Code § 16-64-10 (2021)).

[22] Id. at *18.

[23] Id. at *18.

[24] Id. at *18–19.

Post image by B.A.D. on Flickr

Tags:
4Feb

Death by Distribution in North Carolina

Categories: Current Issues Blog
Comments Off on Death by Distribution in North Carolina

By Paul Fangrow

According to the National Institute on Drug Abuse (“NIDA”), more than 130 people in the United States die every day from overdosing on an opioid drug.[1] The Centers for Disease Control and Prevention (“CDC”) reports that 68% of the over 70,200 deaths by drug overdose in 2017 were from an opioid.[2] Additionally, the CDC estimates the total economic burden per year in the United States is to the tune of $78.5 billion on just prescription opioid abuse.[3] In 2017, the US Department of Health and Human Services (“HHS”) declared that the opioid epidemic was a public health emergency.[4] Since then, over a billion dollars have been granted to community health centers to treat and research opioid addiction through the HHS.[5]

The alphabet soup of federal agencies are not the only actors on this stage attempting to treat the problem; states have also tried to prescribe their own remedies to societies’ new addiction.[6] As states scramble to find ways to staunch the hemorrhage of avoidable deaths via opioid abuse, North Carolina has breathed new life into a specter of the 1980s, leftover from the War on Drugs.[7] On December 1, 2019, North Carolina’s “death by distribution” law went into effect, which attempts to help fix the crisis by imposing felony convictions on illegal distributors of certain categories of drugs, when those drugs result in the death of their user.[8] Unfortunately, this new “death by distribution” law looks to be a very small solution for a very large problem.

To understand why this fix is so small, consider the cause of the epidemic. It has been widely reported and accepted that the opioid epidemic’s “patient zero” was over-prescription of opioid painkillers in the late 1990s, which led to rampant misuse by patients due to the extremely addictive properties of these painkillers.[9] NIDA reports that between 21% and 29% of patients prescribed opioids for pain relief misuse them, and 8% to 12% of that pool of patients develop a “use disorder.”[10] Out of the original 21% to 29% of people who misuse prescription opioids and ostensibly included in the 8% to 12% of “use disorder” cases, 4% to 6% transition to heroin abuse.[11] Roughly 80% of heroin users initially were misusing prescription opioids.[12]

Now consider what this “death by distribution” law criminalizes. First, while one might intuit “distribution,” the elements of both death by distribution[13] and aggravated death by distribution[14] explicitly state “[t]he person unlawfully sells at least one certain controlled substance.” Not any kind of distribution is criminalized, only sales of certain controlled substances.[15] The statute later defines what kinds of drugs are included as “certain controlled substances,”[16] as well as “lawful distribution” in a way to allow medical professionals to issue valid prescriptions for a legitimate medical purpose, and to allow for pharmacies to dispense, deliver, or administer controlled substances.[17]

Second, both regular and aggravated charges require that “ingestion of the certain controlled substance causes the death of the user.”[18] Third, the sale of the certain controlled substance has to be the proximate cause of the victim’s death.[19] Fourth, the seller must not have acted with malice.[20] The aggravated flavor of the charge includes an additional fifth element that essentially requires the seller to have a previous conviction of this or another drug distribution or trafficking crime.[21] What this law does, in essence, is push the illegal sale of certain categories of drugs from a Class I, H, or G felony[22] to a Class C or B2[23] felony if a person dies from overdose. Two questions arise after a review of this law: will North Carolina’s flavor of drug-induced homicide statute have any meaningful impact on the opioid epidemic,[24] and how does a prosecutor even go about proving all the elements of the crime?

Drug-induced homicide statutes began creeping into the criminal codes of various states in the 1980s to combat the growing use of crack cocaine;[25] North Carolina’s death by distribution law even covers cocaine and its derivatives as the sole stimulant in a long list of depressants.[26] The idea behind these statutes was that big distributors and traffickers would be able to be charged for the deaths of their customers.[27] In reality, the people often caught by these drug-induced homicide statutes were friends, family members, or caretakers sharing drugs with one another.[28] The North Carolina statute is thus very clever in specifying a sale of a drug instead of mere distribution, as it ostensibly will avoid this unfortunate outcome. Unfortunately, clever avoidance of an overbreadth problem doesn’t speak to its efficacy as a solution to the opioid epidemic. Remember that the cause is over-prescription and subsequent abuse of painkillers.[29] While this law may help the people who’ve moved on to heroin or other illegal opioids by virtue of closing down the avenues for its distribution, it does nothing to address the problem of abuse with legally obtained opioids.[30]

 The bigger issue with drug-induced homicide laws is proving the actual offense.[31] Drug-induced homicide laws do have two distinct advantages in that category; they do not have a mens rea requirement and operate as a strict liability offense, and they often do not have a proximate cause or foreseeability element.[32] North Carolina’s death by distribution law is similar in that it has no mens rea element in either the standard nor the aggravated offense, but both offenses explicitly incorporate a proximate cause requirement.[33] This introduces concepts of foreseeability and/or intervening or superseding causation into the statute,[34] which can significantly muddy an otherwise straightforward case. What if the buyer of a drug intentionally overdoses as a form of suicide?[35] What if the victim overdosed by taking a mixture of Vicodin and LSD?[36] The explicit statutory language requires that “[t]he ingestion of the certain controlled substance or substances cause[] the death of the user;”[37] what if a drug dealer sells oxycontin to a driver who dies in a car accident while high? This is ignoring the difficulty in locating and proving that a specific dealer sold the specific drug to a specific person who overdosed on that specific drug: what if the victim has more than one dealer of the same product? Ultimately, these are all fact-intensive inquiries for a jury to resolve, which introduces a large degree of unpredictability into any death by distribution case.

Besides unpredictability, there are other factors that make the death by distribution law unworkable. The administrative costs to secure toxicology reports and get experts to testify as to the drugs within the victim’s systems brings with it a higher administrative cost to prosecute.[38] There is also the greater financial burden on the state to incarcerate dealers for four to fifteen years instead of less-than-one to three years. All these costs go to remedy a symptom, not the actual disease underlying the opioid epidemic. People affected by the opioid epidemic deserve better solutions than a stopgap relic from the 1980s. The death by distribution law will be simply ineffective.

[1] Opioid Overdose Crisis, NIH, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last updated Jan. 2019).

[2] Understanding the Epidemic, CDC, https://www.cdc.gov/drugoverdose/epidemic/index.html (last updated Dec. 19, 2018).

[3] NIH, supra note 1.

[4] What is the U.S. Opioid Epidemic?, HHS, https://www.hhs.gov/opioids/about-the-epidemic/index.html (last updated Sept. 4, 2019).

[5] Nathan Yerby, Epidemic, OpioidHelp, https://www.opioidhelp.com/epidemic/ (last edited Oct. 15, 2019).

[6] Prescribing Policies: States Confront Opioid Overdose Epidemic, Nat’l Conf. State Legislatures (June 30, 2019) https://www.ncsl.org/research/health/prescribing-policies-states-confront-opioid-overdose-epidemic.aspx.

[7] Valena E. Beety, Drug Enforcement & Health Policy in Today’s Epidemic: Prosecuting Opioid Use, Punishing Rurality, 80 Ohio St. L.J. 741, 757–58 (2019).

[8] N.C. Gen. Stat. § 14-18.4 (2019).

[9] CDC, supra note 2; HHS, supra note 4; NIH, supra note 1.

[10] NIH, supra note 1.

[11] NIH, supra note 1.

[12] NIH, supra note 1.

[13] N.C. Gen. Stat. § 14-18.4(b)(1) (2019) (“Death by Distribution of Certain Controlled Substances”) (emphasis added).

[14] N.C. Gen. Stat. § 14-18.4(c)(1) (2019) (“Aggravated Death by Distribution of Certain Controlled Substances”) (emphasis added).

[15] N.C. Gen. Stat. § 14-18.4(b)(1), (c)(1) (2019).

[16] N.C. Gen. Stat. § 14-18.4(d) (2019) (“ . . . [A]ny opium, opiate, or opioid; any synthetic or natural salt, compound derivative, or preparation of opium, opiate, or opioid; cocaine or any other substance described in [the list of cocaine derivatives]; methamphetamine; a depressant described in [the list of Schedule IV depressants]; or a mixture of one or more of these substances.”)

[17] N.C. Gen. Stat. § 14-18.4(g) (2019).

[18] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[19] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[20] N.C. Gen. Stat. § 14-18.4(b)(4), (c)(4) (2019). If they acted with malice, presumably they would be charged with murder instead.

[21] N.C. Gen. Stat. § 14-18.4(c)(4) (2019).

[22] N.C. Gen. Stat. § 90-95(b) (2019) (depending on what schedule the drug is on).

[23] N.C. Gen. Stat. § 14-18.4(h) (2019) (criminalizing death by distribution as a Class C felony and aggravated death by distribution as a Class B2 felony).

[24] Jamie Peck, Why Heroin Addicts Are Being Charged With Murder, Rolling Stone (Aug. 2, 2018), https://www.rollingstone.com/culture/culture-features/heroin-opioid-addicts-charged-with-murder-o-d-703242/.

[25] Valena E. Beety et al., Drug-Induced Homicide: Challenges and Strategies in Criminal Defense, 70 S.C. L. Rev. 707, 709 (2019).

[26] N.C. Gen. Stat. § 14-18.4(d) (2019).

[27] Beety et al., supra note 25.

[28] Id.; see Peck, supra note 24.

[29] NIH, supra note 1.

[30] This may be intentional, however, as the STOP Act of 2017 explicitly targeted legally prescribed opioids and tightened how they are to be prescribed by pharmacists and physicians; the electronic prescription requirement of the act came into effect just this year. Bill Summary, N.C. Medical Board, https://www.ncmedboard.org/images/uploads/article_images/The_STOP_Act_summary-OnLetterhead.pdf (last revised June 30, 2017).

[31] Hailey Varner, Note, Chasing the Deadly Dragon: How the Opioid Crisis in the United States Is Impacting the Enforcement of Drug-Induced Homicide Statutes, 19 U. Ill. L. Rev. 1799, 1824 (2019).

[32] Alex Kreit, Drug Enforcement & Health Policy in Today’s Epidemic: The Opioid Crisis and the Drug War at the Crossroads, 80 Ohio St. L.J. 887, 896–97 (2019).

[33] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[34] Beety et al., supra note 25, at 725–27 (explaining the effect of proximate cause and intervening cause doctrine on drug-induced homicide charges).

[35] Kreit, supra note 32, at 897 (noting that at least one federal district court judge stated that suicide through heroin overdose met a death by homicide statute’s terms, which did not have a proximate cause element).

[36] LSD is not covered by the Death by distribution statute.

[37] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[38] According to some commentators, the point of these kinds of laws isn’t even to prosecute them; they’re just a scare tactic to force caught dealers into a plea agreement. Beety, supra note 7, at 758–59.

Tags:
24Sep

Band-Aids, Baby Products, and Blatant Deception: Johnson & Johnson’s $572M Oklahoma Opioid Epidemic Verdict

Categories: Current Issues Blog
Comments Off on Band-Aids, Baby Products, and Blatant Deception: Johnson & Johnson’s $572M Oklahoma Opioid Epidemic Verdict

By Mary-Kathryn Hawes

As Walter Bender, Deputy Sheriff in Montgomery County, Ohio stated: “[O]pioids reach every part of society: blue collar, white collar, everybody. It’s nonstop. It’s every day. And it doesn’t seem like it’s getting any better.”[1] It is estimated that forty-six people die from opioid overdoses involving prescription opioids every day, with methadone, oxycodone, and hydrocodone being the most common drugs involved in these deaths.[2] It is further estimated that 4-6% of people who misuse prescription opioids switch to using heroin.[3] These few statistics[4] paint a dire picture: there is an opioid epidemic and we need help.

To that end, states, counties, and towns have filed lawsuits against big pharmaceutical companies, seeking to hold them responsible for the opioid epidemic and receive financial assistance to help pay for some of the astronomical costs inflicted by the scale of the opioid crisis.[5] One such case involved the State of Oklahoma suing major pharmaceutical companies (including Purdue, Teva, and Johnson & Johnson) under a public nuisance theory.[6] Purdue and Teva both settled prior to trial for $270 and $85 million, respectively.[7] However, Johnson & Johnson proceeded to trial, where they were handed a $572 million verdict on 26 August 2019 for deceptively marketing opioids and contributing to the opioid crisis.[8]

This verdict was splashed across television screens and newspapers when it was first rendered, with the underlying facts and findings of the case interestingly providing a bird’s eye view of how involved the pharmaceutical companies were in manufacturing this crisis. In seeking relief in state court, Oklahoma’s sole claim was that the pharmaceutical companies caused a public nuisance and the State sought abatement of that nuisance.[9] It was undisputed that in 2015, there were enough opioids prescribed in Oklahoma for each adult to have 110 pills.[10] Further, “[i]n 2017, 4.2% of babies born covered by SoonerCare [Oklahoma’s state Medicaid] were born with Neonatal Abstinence Syndrome . . . a group of conditions caused when a baby withdraws from certain drugs [that] it’s exposed to in the womb before birth.”[11] Oklahoma is a microcosm of the epidemic ravaging the United States.

In finding Johnson & Johnson caused a public nuisance, Judge Thad Balkman ruled that Johnson & Johnson “marketed, promoted and sold opioid drugs in Oklahoma” since the mid-1990s.[12] The judgment devotes a few pages to discussing Johnson & Johnson’s subsidiary companies. As part of a “pain management franchise,” Johnson & Johnson was owned two subsidiary companies, Tasmanian Alkaloids Limited and Noramco, Inc., from the 1990s through at least 2016.[13] Tasmanian Alkaloids, based in Tasmania (a province of Australia), “cultivated and processed opium poppy plants to manufacture narcotic raw materials” that were imported into the United States and processed by Noramco.[14] Anticipating demand for opioids, in 1994, Tasmanian Alkaloids developed a “high thebaine” opium poppy plant to “enable[] the growth of oxycodone.”[15] Noramco subsequently processed these raw materials into the active pharmaceutical ingredients used in opioids and supplied both Johnson & Johnson and other pharmaceutical companies with these active ingredients.[16] Johnson & Johnson maintained these subsidiaries to “ensure a reliable source of [narcotic] raw materials” and “security of supply.”[17]

Shrouded behind a positive public image as the maker of familiar products like Band-Aids and baby powder, Johnson & Johnson was, and still is, a major player in the opioid supply business. Judge Balkman found that Noramco was used by Johnson & Johnson to supply the top seven generic drug companies with active pharmaceutical ingredients used in opioid manufacturing.[18] Specifically, Noramco provided other manufacturers with “oxycodone, hydrocodone, morphine, codeine, buprenorphine, hydromorphone, and naloxone.”[19] Eventually, Noramco “grew to become the No. 1 narcotic [active pharmaceutical ingredient] supplier of oxycodone, hydrocodone, codeine, and morphine in the United States.”[20]

The judgment then spends several pages detailing exactly how Johnson & Johnson “embarked on a major campaign in which they used branded and unbranded marketing to disseminate the messages that pain was being undertreated and there was a low risk of abuse and a low danger of prescribing opioids to treat chronic, non-malignant pain and overstating the efficacy of opioids.”[21] Specifically, Johnson & Johnson promoted that pain was undertreated in an effort to encourage providers to prescribe opioids as the solution.[22] The Court found that Johnson & Johnson utilized the term “pseudoaddiction” to “convince doctors that patients who exhibited signs of addiction . . . were not actually suffering from addiction, but from the undertreatment of pain; and the solution, according to Defendants’ marketing, was to prescribe the patient more opioids.”[23]

Further, in 2004, the FDA sent Johnson & Johnson a letter noting that a file card used to promote their product Duragesic (a skin patch containing fentanyl, a highly addictive opioid)  was false or misleading because the card suggested that “Duragesic has a lower potential for abuse compared to other opioid products” and could “encourage the unsafe use of the drug.”[24] In conjunction with these instances, Johnson & Johnson used “education from Defendants’ sales representatives, literature funded by Defendants in medical journals and publications, materials from professional societies/patient advocacy groups, continuing medical education funded by Defendants, unbranded marketing materials, and Defendants’ paid speakers” to influence doctors’ prescribing habits and encourage them to utilize opioids to treat pain.[25]

In finding that Johnson & Johnson committed a public nuisance, the Court relied on the statutory definition of a nuisance as “unlawfully doing an act, or omitting to perform a duty, which act or omission either: [f]irst, [a]nnoys, injures, or endangers the comfort, repose, health, or safety of others . . . .”[26] While some states require the use of property to commit a nuisance, Oklahoma has interpreted their public nuisance statute to exclude the use of property, and instead, only requires “unlawfully doing an act, or omitting to perform a duty.”[27] Alternatively, the Court found that if Oklahoma law does require the use of property in committing a nuisance, the State still satisfied its burden by demonstrating 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.”[28] Ultimately, the Court concluded that “Defendants’ false, misleading, and dangerous marketing campaigns have caused exponentially increasing rates of addiction, overdose deaths, and Neonatal Abstinence Syndrome,” which are “unlawful acts which annoys, injures, or endangers [sic] the comfort, repose, health or safety of others.”[29]

The Court also found that there were no supervening or intervening causes that “supervened or superseded Defendants’ acts and omissions as a direct cause of the State’s injuries.”[30] Thus, the Court found that Johnson & Johnson created a public nuisance that should be remedied by equitable abatement.[31] After detailing Oklahoma’s Abatement plan (described in the table below), the Court found that Oklahoma needed $572,102,028 to carry out the plan in its first year.[32] Even though several of Oklahoma’s witnesses testified that the abatement plan required at least 20 years to be effective, the Court found that the State did not provide sufficient evidence to establish the costs necessary for that timeframe, and thus, were not awarded damages past the first year.[33]

Table 1: Overview of Oklahoma’s Abatement Plan[34]

So, why does all of this matter? Not only is the Oklahoma case the first national civil litigation suit for the opioid epidemic that went to trial,[35] it seriously holds a major pharmaceutical company accountable for catalyzing the opioid epidemic. Johnson & Johnson, along with the other major pharmaceutical companies, aggressively marketed opioids as a low-risk solution to pain, when they were anything but. As Gary Mendell, founder and CEO of the advocacy group Shatterproof, stated: “Today’s monumental decision in Oklahoma is a critical step in setting a precedent for the largest public health crisis facing our country, bringing justice to the lives lost, and reversing the course of addiction crisis for future generations.”[36]

[1] James Nachtwey, The Opioid Diaries, Time, Mar. 5, 2018, at 1.

[2] Overdose Death Maps, Ctr. for Disease Control & Prevention (Aug. 13, 2019), https://www.cdc.gov/drugoverdose/data/prescribing/overdose-death-maps.html.

[3] Opioid Overdose Crisis, Nat’l Inst. on Drug Abuse (Jan. 2019), https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis#seven.

[4] As with many subjects, statistics don’t tell the whole story. No one wants to be an addict and I would be remiss if I did not point readers to an article sharing individual quotes and perspectives on this crisis. See Nachtwey, supra note 1; see also Families Impacted By The Opioid Crisis Testified at Johnson & Johnson Trial, NPR (Aug. 28, 2019), https://www.npr.org/2019/08/28/754962728/families-impacted-by-the-opioid-crisis-testified-at-johnson-johnson-trial (“I wish that someday people would realize I’m not a bad person. I’m a good person with a bad disease.”).

[5] See, e.g., German Lopez, The Thousands of Lawsuits Against Opioid Companies, Explained, Vox (Sep. 11, 2019, 4:30 PM), https://www.vox.com/policy-and-politics/2017/6/7/15724054/opioid-epidemic-lawsuits-purdue-oxycontin.

[6] See generally Oklahoma ex rel. Hunter v. Purdue Pharma L.P., No. CJ-2017-816 (Okla. Dist. Ct. [Cleveland Cty.], Aug. 26, 2019), https://archive.org/download/balkmanopioidjudgment/Balkman-Opioid-Judgment.pdf.

[7] Jackie Fortier & Brian Mann, Johnson & Johnson Ordered to Pay Oklahoma $572 Million in Opioid Trial, NPR (Aug. 26, 2019, 4:19 PM), https://www.npr.org/sections/health-shots/2019/08/26/754481268/judge-in-opioid-trial-rules-johnson-johnson-must-pay-oklahoma-572-million.

[8] Hunter, at *41–42.

[9] Id. at *2 (citing Okla. Stat. Ann. tit. 50, § 1-44 (West 2017)).

[10] Id.

[11] Id.

[12] Id. at *4.

[13] Id. at *5.

[14] Id.

[15] Id. at *7–8.

[16] Id. at *5–6.

[17] Id. at *7 (alteration in original) (quotations omitted).

[18] Id. at *8.

[19] Id.

[20] Id. at *9.

[21] Id. at *9.

[22] Id. at *10. At the time, pain was sometimes referred to as the “fifth vital sign” in a push to have providers respond to patient complaints of pain. See Natalia E. Morone & Debra K. Weiner, Pain As the Fifth Vital Sign: Exposing the Vital Need for Pain Education, 35 Clinical Therapeutics 1728 (2013).

[23] Hunter, at *11.

[24] Id. at *4–5, 18.

[25] Id. at *9–10.

[26] Id. at *22. (citing Okla. Stat. Ann. tit. 50, § 1 (West 2017))

[27] Id.; see also Paul L. Keenan, Note, Death by 1000 Lawsuits: The Public Litigation in Response to the Opioid Crisis Will Mirror the Global Tobacco Settlement of the 1990s, 52 New Eng. L. Rev. 69, 75-77 (2017) (detailing the various theories of liability that communities are using in their lawsuits against pharmaceutical companies).

[28] Hunter, at *24.

[29] Id. at *25–26 (quotations omitted).

[30] Id. at *29.

[31] Id. at *30.

[32] Id. at *41.

[33] Id. (emphasis added).

[34] Id. at *30–41.

[35] Jackie Fortier, Pain Meds As Public Nuisance? Oklahoma Tests a Legal Strategy For Opioid Addiction, NPR (July 16, 2019, 4:49 PM), https://www.npr.org/sections/health-shots/2019/07/16/741960008/pain-meds-as-public-nuisance-oklahoma-tests-a-legal-strategy-for-opioid-addictio.

[36] Statement on Johnson & Johnson Oklahoma Trial Verdict, Shatterproof (Aug. 26, 2019), https://www.shatterproof.org/press/statement-johnson-johnson-oklahoma-trial-verdict.

Tags: