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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. Going on in Oklahoma,

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Speaker 1: it's the first trial over opioid abuse. Johnson and Johnson

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Speaker 1: is accused by the state of Oklahoma, and it's seeking

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Speaker 1: at least ten billion dollars to address its text outlays.

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Speaker 1: Joining us is Eric Gordon, professor at the University of

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Speaker 1: Michigan Law School. Eric Teva settled, Perdue Pharma settled. Why

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Speaker 1: didn't J and J settle? I think Jane j thinks

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Speaker 1: they have the strongest case that the case against them

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Speaker 1: from Oklahoma is certainly a lot weaker than the you know,

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Speaker 1: sort of the real bad guy here um or the

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Speaker 1: you know, the peutitive bad guy Perdue, where there's there's

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Speaker 1: lots of very specific evidence of of marketing practices that

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Speaker 1: you know, look pretty bad. Uh, the evidence against Johnson

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Speaker 1: and Johnson doesn't seem to be as extensive or as specific.

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Speaker 1: And also there there's a huge difference in the in

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Speaker 1: the amount of drugs that of these opioids that J

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Speaker 1: and J has sold versus Perdue. So I think overall,

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Speaker 1: Johnson and Johnson thinks, you know, perhaps of the three

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Speaker 1: companies to have a Perdue and Johnson and Johnson, they

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Speaker 1: have the best chance of winning. Now, Oklahoma is relying

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Speaker 1: on one legal theory public nuisance law. Tell us about

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Speaker 1: that theory and the problems Oklahoma may have with it. Yeah,

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Speaker 1: that's really interesting because you know, they started off with

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Speaker 1: lots of theories, uh, you know, deceptive trade practices and fraud,

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Speaker 1: and then pretty much at the last minute they dropped

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Speaker 1: all of them, but the public nuisances and and it's uh,

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Speaker 1: it's a semi creative use of public nuisance because the

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Speaker 1: classic idea about public nuisance is things like, uh, you know,

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Speaker 1: you're emitting noxious fumes that are affecting the public as

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Speaker 1: a whole, or or one of my favorites, since I

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Speaker 1: live in a college town, is the house full of

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Speaker 1: college students that put these huge speakers outside in the

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Speaker 1: middle of the night is boom boom boom music and

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Speaker 1: nobody can sleep. Uh, so you get the place closed

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Speaker 1: as as a public nuisance. The idea that you know,

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Speaker 1: supplying these opioids constitute of public nui stance is pretty creative. Um,

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Speaker 1: and Uh, I think it's a it's a it's a

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Speaker 1: not a clear cause of action. It's going to be

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Speaker 1: a tough one. But you know, it has worked June.

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Speaker 1: I mean, they used it in the Big Tobacco settlement,

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Speaker 1: which was a huge settlement. They've used it against the

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Speaker 1: gun Manu factors where it pretty much hasn't worked. So

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Speaker 1: I think, uh, it's going to be a test of

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Speaker 1: that that that approach. Um. North Dakota tried it and

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Speaker 1: the judge in North Dakota said, Nah, this isn't the

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Speaker 1: public nuisance. It might be something else, but it's not

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Speaker 1: a public nuisance. So this is going to be a

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Speaker 1: very interesting case to watch. How much is this case

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Speaker 1: going to be a pattern for the cases that come

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Speaker 1: after it? Yeah, So since it's the first one that's

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Speaker 1: actually going to trial in front of a fact finder,

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Speaker 1: it's not going in front of a jury, it's going

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Speaker 1: in front of a judge. Um, but it'll be watched

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Speaker 1: very closely. I think if J and J wins, it's

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Speaker 1: gonna put a lot of pressure on other plaintiffs. To settle.

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Speaker 1: If J and J loses, I don't think it's the

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Speaker 1: end for J and j UM. I think they will

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Speaker 1: continue to defend other cases. Now. In testimony today there

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Speaker 1: was talk of father talking about his son's addiction and

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Speaker 1: his death from opioid abuse, a homegrown football star at

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Speaker 1: the University of Oklahoma. How much does that affect a judge.

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Speaker 1: If this were before a jury, you could say, well,

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Speaker 1: they're appeally, they're trying to appeal to the jury in

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Speaker 1: you know, a father reaching out to a jury. But

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Speaker 1: when it's a judge, does it make that much difference?

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Speaker 1: You know, it makes It makes less difference than it

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Speaker 1: does in front of a jury. But judges are still people.

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Speaker 1: So the judges, you know, say they can discount it,

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Speaker 1: and I think they can do it a lot better

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Speaker 1: than a jury. Um. But there's an interesting quirk here. Um.

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Speaker 1: In fact, it's in front of a judge because Oklahoma,

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Speaker 1: the plaintiff said, uh, gee, we changed our mind. First

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Speaker 1: they demanded a jury trial, which you would expect you

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Speaker 1: don't try to get that sympathy play that you were

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Speaker 1: talking about. And then they said, well no, no, we

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Speaker 1: want to switch to a judge. And J and J.

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Speaker 1: The defendant said, we would like to have a jury um,

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Speaker 1: and the judge said no. And you know, not fooling around.

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Speaker 1: This is going to trial. It's going in front of me.

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Speaker 1: So this case is just really unusual. And at the

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Speaker 1: same time about a minute here, but J and J

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Speaker 1: is fighting this the publicity from this in the public

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Speaker 1: and as well as the many other cases it has

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Speaker 1: over its baby powder, isn't it would be time to

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Speaker 1: take a break for J and J from the courtroom.

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Speaker 1: You know, at some point they think that they might

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Speaker 1: settle cases that they think they can win just to

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Speaker 1: end the PR. You know, this this is long parade.

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Speaker 1: This is like the amazing Thanksgiving Day parade goes the

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Speaker 1: bad PR goes on and on forever, and at some

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Speaker 1: point somebody has a business decision is going to say,

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Speaker 1: all right, look, uh, let's treat just like a marketing expense.

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Speaker 1: Let's settle these cases and and end the PR disaster.

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Speaker 1: And how long is the case expected to go on?

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Speaker 1: You know, I'm not sure, But because it's in front

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Speaker 1: of a judge, and because they've slimmed it down just

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Speaker 1: to this one claim, I think it'll move a lot

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Speaker 1: more quickly than we had thought it would move all right.

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Speaker 1: Thank you so much. As always, Eric, that's Eric Gordon

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Speaker 1: of the University of Michigan Law School. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg

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Speaker 1: dot com slash podcast. I'm June Brasso. This is Bloomberg