Ms. Burch said some courts have found that those manufacturers didn’t have a specific duty to the public. The companies had prevailed by arguing that once the product left their facilities, they were not the direct cause of the ensuing harm or in a position to remedy it.
Similarly, she said, opioid defendants contend that the connection between manufacturers and overdose deaths is too attenuated.
Earlier this month, a North Dakota judge dismissed that state’s case against Purdue, including its public nuisance claim. While the ruling affects only that state, lawyers have said the decision creates an appellate template for defendants. Public nuisance laws, the judge wrote, were not intended where “one party has sold to another a product that later is alleged to constitute a nuisance.”
Mr. Hunter says that Oklahoma’s own law is “powerful and expansive.”
The state had been eager for a jury trial. But recently, lawyers reversed course and requested a bench trial, despite the perception that a jury could be readily convinced to seek revenge for the opioid devastation.
That perception is not necessarily true. “Juries are increasingly pro-defendant,” said Ms. Lahav. “And the state may feel that Oklahomans are business-friendly and individualistic.”
Jurors might have responded well to the company’s argument that manufacturers were producing medicines that were government-approved, she added, and that people had a choice about whether or not to take them.
It was J & J who wound up requesting a jury trial. That was likely because, said Adam Zimmerman, who teaches complex litigation at Loyola Law School Los Angeles, Judge Balkman has made rulings against the defense and has steadily marched the parties toward a trial date.
“J & J would probably rather try their luck with 12 people as opposed to this one person,” he said.
In a statement about the Teva settlement, Mr. Hunter said: “Nearly all Oklahomans have been negatively impacted by this deadly crisis and we look forward to Tuesday, where we will prove our case against Johnson & Johnson and its subsidiaries.”