Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. Going on in Oklahoma,
Speaker 1: it's the first trial over opioid abuse. Johnson and Johnson
Speaker 1: is accused by the state of Oklahoma, and it's seeking
Speaker 1: at least ten billion dollars to address its text outlays.
Speaker 1: Joining us is Eric Gordon, professor at the University of
Speaker 1: Michigan Law School. Eric Teva settled, Perdue Pharma settled. Why
Speaker 1: didn't J and J settle? I think Jane j thinks
Speaker 1: they have the strongest case that the case against them
Speaker 1: from Oklahoma is certainly a lot weaker than the you know,
Speaker 1: sort of the real bad guy here um or the
Speaker 1: you know, the peutitive bad guy Perdue, where there's there's
Speaker 1: lots of very specific evidence of of marketing practices that
Speaker 1: you know, look pretty bad. Uh, the evidence against Johnson
Speaker 1: and Johnson doesn't seem to be as extensive or as specific.
Speaker 1: And also there there's a huge difference in the in
Speaker 1: the amount of drugs that of these opioids that J
Speaker 1: and J has sold versus Perdue. So I think overall,
Speaker 1: Johnson and Johnson thinks, you know, perhaps of the three
Speaker 1: companies to have a Perdue and Johnson and Johnson, they
Speaker 1: have the best chance of winning. Now, Oklahoma is relying
Speaker 1: on one legal theory public nuisance law. Tell us about
Speaker 1: that theory and the problems Oklahoma may have with it. Yeah,
Speaker 1: that's really interesting because you know, they started off with
Speaker 1: lots of theories, uh, you know, deceptive trade practices and fraud,
Speaker 1: and then pretty much at the last minute they dropped
Speaker 1: all of them, but the public nuisances and and it's uh,
Speaker 1: it's a semi creative use of public nuisance because the
Speaker 1: classic idea about public nuisance is things like, uh, you know,
Speaker 1: you're emitting noxious fumes that are affecting the public as
Speaker 1: a whole, or or one of my favorites, since I
Speaker 1: live in a college town, is the house full of
Speaker 1: college students that put these huge speakers outside in the
Speaker 1: middle of the night is boom boom boom music and
Speaker 1: nobody can sleep. Uh, so you get the place closed
Speaker 1: as as a public nuisance. The idea that you know,
Speaker 1: supplying these opioids constitute of public nui stance is pretty creative. Um,
Speaker 1: and Uh, I think it's a it's a it's a
Speaker 1: not a clear cause of action. It's going to be
Speaker 1: a tough one. But you know, it has worked June.
Speaker 1: I mean, they used it in the Big Tobacco settlement,
Speaker 1: which was a huge settlement. They've used it against the
Speaker 1: gun Manu factors where it pretty much hasn't worked. So
Speaker 1: I think, uh, it's going to be a test of
Speaker 1: that that that approach. Um. North Dakota tried it and
Speaker 1: the judge in North Dakota said, Nah, this isn't the
Speaker 1: public nuisance. It might be something else, but it's not
Speaker 1: a public nuisance. So this is going to be a
Speaker 1: very interesting case to watch. How much is this case
Speaker 1: going to be a pattern for the cases that come
Speaker 1: after it? Yeah, So since it's the first one that's
Speaker 1: actually going to trial in front of a fact finder,
Speaker 1: it's not going in front of a jury, it's going
Speaker 1: in front of a judge. Um, but it'll be watched
Speaker 1: very closely. I think if J and J wins, it's
Speaker 1: gonna put a lot of pressure on other plaintiffs. To settle.
Speaker 1: If J and J loses, I don't think it's the
Speaker 1: end for J and j UM. I think they will
Speaker 1: continue to defend other cases. Now. In testimony today there
Speaker 1: was talk of father talking about his son's addiction and
Speaker 1: his death from opioid abuse, a homegrown football star at
Speaker 1: the University of Oklahoma. How much does that affect a judge.
Speaker 1: If this were before a jury, you could say, well,
Speaker 1: they're appeally, they're trying to appeal to the jury in
Speaker 1: you know, a father reaching out to a jury. But
Speaker 1: when it's a judge, does it make that much difference?
Speaker 1: You know, it makes It makes less difference than it
Speaker 1: does in front of a jury. But judges are still people.
Speaker 1: So the judges, you know, say they can discount it,
Speaker 1: and I think they can do it a lot better
Speaker 1: than a jury. Um. But there's an interesting quirk here. Um.
Speaker 1: In fact, it's in front of a judge because Oklahoma,
Speaker 1: the plaintiff said, uh, gee, we changed our mind. First
Speaker 1: they demanded a jury trial, which you would expect you
Speaker 1: don't try to get that sympathy play that you were
Speaker 1: talking about. And then they said, well no, no, we
Speaker 1: want to switch to a judge. And J and J.
Speaker 1: The defendant said, we would like to have a jury um,
Speaker 1: and the judge said no. And you know, not fooling around.
Speaker 1: This is going to trial. It's going in front of me.
Speaker 1: So this case is just really unusual. And at the
Speaker 1: same time about a minute here, but J and J
Speaker 1: is fighting this the publicity from this in the public
Speaker 1: and as well as the many other cases it has
Speaker 1: over its baby powder, isn't it would be time to
Speaker 1: take a break for J and J from the courtroom.
Speaker 1: You know, at some point they think that they might
Speaker 1: settle cases that they think they can win just to
Speaker 1: end the PR. You know, this this is long parade.
Speaker 1: This is like the amazing Thanksgiving Day parade goes the
Speaker 1: bad PR goes on and on forever, and at some
Speaker 1: point somebody has a business decision is going to say,
Speaker 1: all right, look, uh, let's treat just like a marketing expense.
Speaker 1: Let's settle these cases and and end the PR disaster.
Speaker 1: And how long is the case expected to go on?
Speaker 1: You know, I'm not sure, But because it's in front
Speaker 1: of a judge, and because they've slimmed it down just
Speaker 1: to this one claim, I think it'll move a lot
Speaker 1: more quickly than we had thought it would move all right.
Speaker 1: Thank you so much. As always, Eric, that's Eric Gordon
Speaker 1: of the University of Michigan Law School. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg
Speaker 1: dot com slash podcast. I'm June Brasso. This is Bloomberg