Two days ago, in State of Oklahoma v. Johnson & Johnson, et al., 2021 OK 54 (the “J&J Decision”), the Oklahoma Supreme Court issued a narrow ruling overturning the judgment in State v. Purdue Pharma, L.P., No. CJ-2017-816, 2019 WL 9241510 (Dist. Ct. Cleveland Cty. Nov. 15, 2019).
“The Oklahoma Supreme Court's narrow ruling in the J&J Decision draws a critical distinction in public nuisance law that strengthens our clients' case. The Court held that a public nuisance cannot arise out of the marketing, manufacturing, and distribution of a lawful product, and it made clear that a public nuisance must stem from a criminal act or a physical injury to property that renders an entire neighborhood uninhabitable. We cannot imagine anything more criminal or offensive than the murder, arson, looting, domestic terrorism, and ongoing violations of state and federal law, all of which have resulted in the literal destruction of the prosperous, and well-defined, Black neighborhood in Tulsa,” said Attorney Damario Solomon-Simmons of SolomonSimmonsLaw.
The Court specifically noted that, in the case of opioid manufacturing, a robust products liability tort regime exists that is better suited to adjudicate problems resulting from the marketing, selling, and overprescribing of opioids. In our case, by contrast, there is no other neighborhood- or community-based legal claim of which the Plaintiffs, who include the last three known living survivors of the Tulsa Race Massacre of 1921, can avail themselves to abate the nuisance that began with the destruction of their community on May 31, 1921, and continues to this day.
The Supreme Court’s ruling also makes exceptionally clear that public nuisance claims share no ground with traditional tort claims, as the Supreme Court declared, “an action for abatement of a nuisance is equitable in nature.” This declaration defeats one of the Defendants' central arguments.
For these reasons, we are confident that the Supreme Court’s decision will guide the District Court to make the right decision in our case, and that we will prevail in obtaining justice for our clients. In fact, we have already filed a Notice of Supplemental Authority requesting that Tulsa County District Judge Caroline Wall grant us the opportunity to fully brief the J&J Decision and schedule a hearing on the matter. “While we are disappointed that the Oklahoma Supreme Court overturned a historic judgment for Oklahomans who have suffered from the opioid epidemic, we are encouraged by the Oklahoma Supreme Court's establishment of guidelines for public nuisance suits which encompass our clients' claims,” said Attorney McKenzie Haynes of Schulte Roth & Zabel.
SolomonSimmonsLaw, in conjunction with Schulte Roth & Zabel LLP; Bryan & Terrill Law; Professor Eric Miller of Loyola Marymount College of Law; Maynard M. Henry, Sr.; and Johnson Cephas Law, is working not only to secure justice for survivors and descendants of the Tulsa Race Massacre of 1921, but also to continue to raise attention to the 100 years of continued harm the Massacre has caused Black Tulsans.
Read the full Notice of Supplemental Authority filed today by clicking here.
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