WEBVTT - First Opioid Liability Lawsuit Trial in Oklahoma

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Going on in Oklahoma,

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<v Speaker 1>it's the first trial over opioid abuse. Johnson and Johnson

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<v Speaker 1>is accused by the state of Oklahoma, and it's seeking

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<v Speaker 1>at least ten billion dollars to address its text outlays.

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<v Speaker 1>Joining us is Eric Gordon, professor at the University of

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<v Speaker 1>Michigan Law School. Eric Teva settled, Perdue Pharma settled. Why

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<v Speaker 1>didn't J and J settle? I think Jane j thinks

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<v Speaker 1>they have the strongest case that the case against them

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<v Speaker 1>from Oklahoma is certainly a lot weaker than the you know,

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<v Speaker 1>sort of the real bad guy here um or the

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<v Speaker 1>you know, the peutitive bad guy Perdue, where there's there's

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<v Speaker 1>lots of very specific evidence of of marketing practices that

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<v Speaker 1>you know, look pretty bad. Uh, the evidence against Johnson

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<v Speaker 1>and Johnson doesn't seem to be as extensive or as specific.

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<v Speaker 1>And also there there's a huge difference in the in

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<v Speaker 1>the amount of drugs that of these opioids that J

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<v Speaker 1>and J has sold versus Perdue. So I think overall,

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<v Speaker 1>Johnson and Johnson thinks, you know, perhaps of the three

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<v Speaker 1>companies to have a Perdue and Johnson and Johnson, they

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<v Speaker 1>have the best chance of winning. Now, Oklahoma is relying

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<v Speaker 1>on one legal theory public nuisance law. Tell us about

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<v Speaker 1>that theory and the problems Oklahoma may have with it. Yeah,

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<v Speaker 1>that's really interesting because you know, they started off with

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<v Speaker 1>lots of theories, uh, you know, deceptive trade practices and fraud,

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<v Speaker 1>and then pretty much at the last minute they dropped

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<v Speaker 1>all of them, but the public nuisances and and it's uh,

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<v Speaker 1>it's a semi creative use of public nuisance because the

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<v Speaker 1>classic idea about public nuisance is things like, uh, you know,

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<v Speaker 1>you're emitting noxious fumes that are affecting the public as

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<v Speaker 1>a whole, or or one of my favorites, since I

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<v Speaker 1>live in a college town, is the house full of

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<v Speaker 1>college students that put these huge speakers outside in the

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<v Speaker 1>middle of the night is boom boom boom music and

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<v Speaker 1>nobody can sleep. Uh, so you get the place closed

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<v Speaker 1>as as a public nuisance. The idea that you know,

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

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<v Speaker 1>and Uh, I think it's a it's a it's a

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<v Speaker 1>not a clear cause of action. It's going to be

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<v Speaker 1>a tough one. But you know, it has worked June.

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<v Speaker 1>I mean, they used it in the Big Tobacco settlement,

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<v Speaker 1>which was a huge settlement. They've used it against the

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<v Speaker 1>gun Manu factors where it pretty much hasn't worked. So

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<v Speaker 1>I think, uh, it's going to be a test of

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<v Speaker 1>that that that approach. Um. North Dakota tried it and

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<v Speaker 1>the judge in North Dakota said, Nah, this isn't the

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

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<v Speaker 1>a public nuisance. So this is going to be a

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<v Speaker 1>very interesting case to watch. How much is this case

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<v Speaker 1>going to be a pattern for the cases that come

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<v Speaker 1>after it? Yeah, So since it's the first one that's

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<v Speaker 1>actually going to trial in front of a fact finder,

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<v Speaker 1>it's not going in front of a jury, it's going

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

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<v Speaker 1>very closely. I think if J and J wins, it's

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<v Speaker 1>gonna put a lot of pressure on other plaintiffs. To settle.

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<v Speaker 1>If J and J loses, I don't think it's the

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<v Speaker 1>end for J and j UM. I think they will

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<v Speaker 1>continue to defend other cases. Now. In testimony today there

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<v Speaker 1>was talk of father talking about his son's addiction and

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<v Speaker 1>his death from opioid abuse, a homegrown football star at

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<v Speaker 1>the University of Oklahoma. How much does that affect a judge.

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<v Speaker 1>If this were before a jury, you could say, well,

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<v Speaker 1>they're appeally, they're trying to appeal to the jury in

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<v Speaker 1>you know, a father reaching out to a jury. But

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<v Speaker 1>when it's a judge, does it make that much difference?

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<v Speaker 1>You know, it makes It makes less difference than it

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<v Speaker 1>does in front of a jury. But judges are still people.

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<v Speaker 1>So the judges, you know, say they can discount it,

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<v Speaker 1>and I think they can do it a lot better

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<v Speaker 1>than a jury. Um. But there's an interesting quirk here. Um.

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<v Speaker 1>In fact, it's in front of a judge because Oklahoma,

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<v Speaker 1>the plaintiff said, uh, gee, we changed our mind. First

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<v Speaker 1>they demanded a jury trial, which you would expect you

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<v Speaker 1>don't try to get that sympathy play that you were

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<v Speaker 1>talking about. And then they said, well no, no, we

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<v Speaker 1>want to switch to a judge. And J and J.

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<v Speaker 1>The defendant said, we would like to have a jury um,

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<v Speaker 1>and the judge said no. And you know, not fooling around.

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<v Speaker 1>This is going to trial. It's going in front of me.

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<v Speaker 1>So this case is just really unusual. And at the

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<v Speaker 1>same time about a minute here, but J and J

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<v Speaker 1>is fighting this the publicity from this in the public

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<v Speaker 1>and as well as the many other cases it has

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<v Speaker 1>over its baby powder, isn't it would be time to

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<v Speaker 1>take a break for J and J from the courtroom.

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<v Speaker 1>You know, at some point they think that they might

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<v Speaker 1>settle cases that they think they can win just to

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<v Speaker 1>end the PR. You know, this this is long parade.

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<v Speaker 1>This is like the amazing Thanksgiving Day parade goes the

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<v Speaker 1>bad PR goes on and on forever, and at some

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<v Speaker 1>point somebody has a business decision is going to say,

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

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<v Speaker 1>Let's settle these cases and and end the PR disaster.

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<v Speaker 1>And how long is the case expected to go on?

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

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<v Speaker 1>of a judge, and because they've slimmed it down just

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<v Speaker 1>to this one claim, I think it'll move a lot

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<v Speaker 1>more quickly than we had thought it would move all right.

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<v Speaker 1>Thank you so much. As always, Eric, that's Eric Gordon

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<v Speaker 1>of the University of Michigan Law School. Thanks for listening

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<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

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<v Speaker 1>to the show on Apple Podcasts, SoundCloud, and on bloomberg

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<v Speaker 1>dot com slash podcast. I'm June Brasso. This is Bloomberg