The Boston Globe | Op-Ed | September 1, 2019

In a case that is bound to have ripple effects for years to come, a state court judge in Oklahoma last week held that Johnson & Johnson must pay half a billion dollars to the state government as penance for manufacturing and marketing prescription pain medication. Many are hailing the judgment as a proper comeuppance for the pharmaceutical industry. But the Oklahoma verdict will do little to address the crisis and much to undermine the rule of law.

In ordering Johnson & Johnson to pony up $572 million, Judge Thad Balkman said that the money would help to “abate” the opioid crisis in Oklahoma. But Johnson & Johnson did not cause Oklahoma’s drug problem. And Balkman’s verdict will not solve it.

What it will do is punish a private company for developing and marketing a legal product. And not just any legal product: a medicine approved and regulated by the Food and Drug Administration that has provided needed relief to millions of patients.

So how will the state of Oklahoma spend its $572 million windfall? Millions will, inevitably, go to the trial lawyers who assisted the state with its case. Much more will probably help subsidize the pet projects of Oklahoma politicians.

That’s exactly what happened with the tobacco lawsuits in the 1990s, which ultimately were settled for billions of dollars. The states spent only a fraction of the tobacco money on smoking prevention.

The diversion of tobacco money is well-documented. According to the Government Accountability Office , from 2000 to 2005, states spent almost $20 billion on budget shortfalls, state debt, and “general purposes.” During this same time period, another $6.4 billion of the tobacco settlement payments went to infrastructure projects and educational programs unrelated to tobacco prevention, such as preschool programs, special education, and after-school programs.

The New York Times reported that Alabama used tobacco money to fund boot camps for juvenile delinquents, alternative schools, metal detectors, and surveillance cameras for public schools. New York used tobacco money to put in a sprinkler system at a public golf course. Virginia installed fiber-optic lines for broadband cable in rural regions of the state.

These are just a few of the projects brought to you, courtesy of Philip Morris.

In the Oklahoma opioid case, it is already clear that the major winners are the trial lawyers who assisted the state. Before the trial, Oklahoma settled with Purdue Pharma. Private attorneys reaped a mighty $60 million from the settlement. Their payout from the Johnson & Johnson verdict will likely be even greater.

In the wake of the Oklahoma verdict, several major drug companies reportedly are considering settlements to end the litigation nationwide. But while a settlement might end one industry’s nightmare, it will kick-start additional frivolous suits against others.

Eventually, the government will run out of opioid money. (Government always runs out of other people’s money.) And when it does, it could come for the makers of other legal products that have potentially negative health effects when misused.

Alcohol producers, the fast food industry, energy companies, and the automobile industry are all at risk. Even the tech industry, now blamed for the rise in depression and mental health issues among teens, is not immune.

The tobacco companies were easy villains — after all, they sell cancer-causing products with no apparent benefit (other than the enjoyment of the smoker). And while the pharmaceutical industry creates medically beneficial products, it is nevertheless widely unpopular with the public today.

It is not clear which industry will be next. What is clear, however, is that when the trial lawyers come for it, the negative legal precedent will already have been set by a state court judge in Oklahoma.


Jennifer C. Braceras is director of the Center for Law & Liberty at Independent Women’s Forum.


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