Landmark Liability Case and the
Common Law's Lament
Real Clear Politics,
by
Donald J Kochan
Original Article
Posted By: DanvilleBill,
8/28/2019 2:01:06 PM
Language and the limits of the common law suffered this week as an Oklahoma judge declared Johnson & Johnson liable for supposedly creating what the judge called a “public nuisance” resulting in the state’s opioid crisis.
In this case, the judge’s adoption of the state attorney general’s claim that Johnson & Johnson caused a “public nuisance” as the basis for ordering the company to pay $572 million to fund a crisis abatement plan represents a use of the term unmoored from its bounded common law meaning.
Reply 1 - Posted by:
DVC 8/28/2019 2:16:09 PM (No. 164921)
The docs chose to prescribed it and the people chose to take the pills, and too many for too long.
I have real trouble with holding the company responsible for this. Where is the responsibility of the docs
and the patients? Docs have a real responsibility to not keep prescribing so many of these addictive drugs, and patients have a responsibility to understand what in the heck they are taking, and possible risks.
I had surgery a couple of months ago, was prescribed three levels of pain killers above tylenol. After Ieft the hospital, I got by on tylenol with the exception of 6 times over about 7 weeks when the pain was preventing me from sleeping, and I took a single tablet of the lowest level pain drug, tramadol. The other two, stronger opiods were never taken at all.
Online sources say that the use of strong opiods have increased primarily due to wisdom tooth extractions. That is sad. WIsdom tooth extraction, even by chiseling them out of the bone, doesn't
produce the kind of lasting pain that should even remotely risk addiction. Tylenol for a couple of days should cover it. Or MAYBE one to tablets, total, of something stronger.
People need to take a bit of personal responsibility in this. But, everyone is looking for a deep pocket to raid these days, via socialism or via the courts--"free money" is the real game.
8 people like this.
Reply 2 - Posted by:
DVC 8/28/2019 2:20:00 PM (No. 164922)
should have said "MAYBE one or two tablets..."
2 people like this.
Reply 3 - Posted by:
judy 8/28/2019 2:45:44 PM (No. 164944)
What did the states do with the billions of $$ they received from the tobacco industry?? How about suing China, after all they manufactured this drug? Doctors prescribed these drugs, not the companies. States will get their $$$ one way or other to spend on illegals, high $$ conferences, trips & welfare.
8 people like this.
Reply 4 - Posted by:
Mass Minority 8/28/2019 3:04:18 PM (No. 164962)
The continued and extensive misuse of the public nuisance argument against gun manufacturers is what led to the Protection of Lawful Commerce in Arms Act, which immunized gun manufacturers from product liability litigation due to the illegal misuse of their legal product. It may be time to expand the number of defendants covered by this protection.
8 people like this.
Reply 5 - Posted by:
whyyeseyec 8/28/2019 3:41:00 PM (No. 164981)
Today opioids and talcum powder, tomorrow, guns.
7 people like this.
Reply 6 - Posted by:
Philipsonh 8/28/2019 4:48:23 PM (No. 165018)
Responding to REPLY #1 - Tramadol in low dosage, 100 Mg or less, is not a pain med, it is a sedative that helps an individual to sleep. It is not an opioid and in NYS is not on the controlled substance list -it is not addictive- and it works very well for those that have difficulty sleeping -
0 people like this.
Reply 7 - Posted by:
Catherine 8/28/2019 5:52:55 PM (No. 165085)
I wonder, # 1, are you a dr?
1 person likes this.
Reply 8 - Posted by:
DVC 8/28/2019 6:24:29 PM (No. 165134)
#8, no, but I have been seriously injured a number of times, a number of badly broken bones which required extensive hospitalization (90 days once) so I have experienced serious pain. My most recent surgery was a repair of a very old injury which finally had become too debilitating to leave untreated.
Motorcycles, horseback riding, mountain climbing and a few other things can leave a toll over the decades.
Not quite up there with Evel Knievel, but closer to him that most folks. I don't recommend it.
I have used opioids a few times for severe pain, for a day or two. I try to get by on tylenol or aspirin as much as I possibly can. After my latest surgery, I am pain free when walking, something new after
decades of dealing with an old injury which was steadily getting worse.
0 people like this.
Reply 9 - Posted by:
EQKimball 8/28/2019 7:35:19 PM (No. 165181)
Assuming equally liberal-minded appellate justices, using common law tort concepts to impose ruinous damages on national firms is a clever but vicious means to take down capitalism. On appeal, J&J might consider a 14th Amendment due process argument that the award itself is so grotesquely large compared to actual damages sustained within the jurisdiction that the judgment is actually for punitive damages masquerading as actual damages, for which a single digit multiplier would apply. It would be novel, but consistent with underlying constitutional principle in State Farm v. Campbell.
2 people like this.
With all of the lawsuits and pain medication addiction, I worry about those with horrible pain who really need medication vs those who are addicted. How many doctors prescribed meds like jelly beans and knowing the patients needed addiction treatment, kept on writing? There are a lot of unethical doctors who like bribes. Where is their blame?
0 people like this.
Reply 11 - Posted by:
JrSample 8/29/2019 1:41:11 PM (No. 165924)
How is this not a conflict of interest? A politically appointed State Judge deciding a case that is being prosecuted by a State AG against an out-of-state Corporation. Both the Judge and AG are University of Oklahoma Law School graduates.
The Company produced a legal product, that was legally sold in the state only through prescriptions issued by physicians licensed and regulated by that very state. Any other sales would have been illegal under state laws which that state has the responsibility to enforce. Besides, the company only sold less that 1% of the total sales in that state, yet they are attempting to hold them responsible for all damages due to criminal activity engaged in by the users.
This is nothing but a case of an AG and Judge who are nothing by ambulance-chasing shysters attempting to exploit free money out of a deep-pockets large corporation. Pharmaceutical companies should refuse to sell medicine in Oklahoma. Hopefully, the Judge and AG will contract an especially nasty form of cancer and die excruciatingly painful deaths.
3 people like this.
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Comments:
Finally some common sense on this matter.