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