J&J ruling may feel like a win, but it’s not the answer

Last week's ruling against Johnson and Johnson reminded us of the Billy Joel song, "We Didn't Start The Fire." You probably know the chorus of this song:

We didn't start the fire /

It was always burning /

Since the world's been turning

The lawyers for Johnson and Johnson might have done well to use this quote as part of their defense.

Judge Thad Balkman of Cleveland County, Oklahoma, ordered Johnson and Johnson pay $572 million in the first opioid-related case against the drug manufacturer. This ruling is unconstitutional, a threat to democracy, and bad public policy. We want to think that judges are immune from allowing their emotions -- especially ones that lead to scapegoating -- to interfere with their rulings and/or holdings. However, Judge Balkman's ruling appears to be based on misplaced blame, not the law or facts.

The Aug. 26 ruling may feel like a positive solution in the moment -- a win for creative lawyering and judicial activism over the big, bad pharmaceutical companies -- but it has threatened our liberty. (It has also threatened the likelihood that we will ever address the socioeconomic causes of this epidemic.) Today, Johnson and Johnson is punished for manufacturing and marketing opioid pills and fentanyl patches, all of which were lawfully distributed. Tomorrow, another company, another legal substance could be made illegal by judicial fiat.

It is also worth noting that Johnson and Johnson only manufactured 1% of the opiates circulating around the state of Oklahoma. It is not clear that the $572 million represents 1% of the damages incurred by this crisis in the state.

Demanding $572 million from Johnson and Johnson because of the company's role in the opiate epidemic may feel like justice, but it is not at all justified. It would be like suing alcohol manufacturers because of the number of drunk driving accidents. As attorneys working in the cannabis industry, this ruling makes us very nervous. If Johnson and Johnson can be forced to pay, there is no stopping prosecutors from going after cannabis companies and the lawyers who represent them.

Even the ordered $572 million payment will be like bringing a bucket of water to put out a wildfire. Instead of throwing millions at the problem, we need Congress and our local legislatures to address the opiate epidemic with the kind of social infrastructure that supports people who struggle with addiction. This includes harm reduction facilities, or rehab facilities with a focus on harm reduction and medication assisted treatment. We need Congress to free people who have been imprisoned for drug-related crimes, since incarceration increases the likelihood of substance abuse. Congress could do far more than any individual corporation, like allowing doctors to legally maintain addicts until they overcame their addiction. Congress could also create programs like universal basic income so that people had enough money to live or universal health care so that people would not have to depend on pill mills for painkillers. More social infrastructure would put in a much better place as a society, not just with the epidemic.

This decision from Judge Balkman ignores the root causes of the epidemic from the economic collapse of the coal industry and the effects of that hard labor on its workers, the failure of efforts to re-educate, the issue of income inequality, and the system where insurance companies pressure doctors to seek quick fixes in the form of a pill.

The $572 million from Johnson and Johnson will go towards paying for a year's worth of services that will help combat the epidemic in Oklahoma. We agree that the pharmaceutical companies should pay for programs like mentorship programs and even childcare for parents who are struggling with addiction (most rehab facilities do not allow children, which is another obstacle for people seeking help). However, we cannot ignore the loose regulations in the rehab industry, as in this recent investigation from Mother Jones. Too many rehab facilities participate in "body farming" where they shuffle addicted people from facility to facility and rack up money to do so.

Furthermore, relying on vague laws, like Ohio's public nuisance law, to fix societal problems sets a dangerous precedent. The nuisance statute clearly applies only to a nuisance that arises under the use of one's real property. There is no plausible argument that Johnson and Johnson were made aware that their activities could create a nuisance. Due Process requires that laws must provide guidance on what is prohibited. The nuisance statute explicitly applies to "unlawful" acts or omissions. Johnson and Johnson's opioids are approved and regulated by the FDA and it is legal to sell and market opioids in the United States.

Vague laws are generally interpreted against the poor, minorities, and political dissidents. Vague laws are bad. Even if, as in this incident, the law is interpreted in favor of the people over the companies

According to Judge Balkman, Johnson and Johnson went too far by having its sales representatives prey on medical doctors with misinformation. This argument is a strawman and wrongly assumes that doctors are an unsophisticated, easily misled group. There is scholarly medical literature going back to the late 1800s showing the addictive potential of opiates and prescription abuse has been a problem in the U.S. for 70 years, if not more. If our doctors are not aware of this history and need to rely on pharmaceutical representatives on how to practice medicine, then we have a much bigger problem.

Because of Judge Balkman's ruling, the public nuisance law could be used to curtail other freedoms in the future. Anything may be deemed a "public nuisance." A "free" people should not be forced to live under such conditions. Certainty in law is the foundation in the rule of law. Uncertainty in law is not "a government of laws" but of men.

The opioid crisis is huge, one of the worst public health crises since the AIDS epidemic. It is easy to be swayed by emotions and scapegoat the corporations who have profited from this crisis. However, capitalism is not illegal in the United States. Until that day comes, Johnson and Johnson does have the right to manufacture and market opioids, no matter how tragic the consequences.

No matter how tragic the opioid crisis is, we cannot allow prosecutors and judges to nullify legislatures' determination that opioids are legal. Prosecutors and judges should not be allowed to use vague nuisance laws to be taken out of context to address problems plaguing our society. 