Causation and Apportionment Issues in Opioid Litigation

In November 2019, an Oklahoma trial court judge, sitting without a jury, ruled that Johnson & Johnson and its subsidiary Janssen Pharmaceuticals were guilty of creating a public nuisance because their production and marketing of prescription opioid painkillers significantly contributed to the current opioid epidemic in the State of Oklahoma. The judge also held that Johnson & Johnson must contribute $65 million to pay for the State's program to abate this nuisance. Although the case has been appealed, it is significant because it was the first government sponsored opioid case to actually go to trial. Although there are many issues raised by the Johnson & Johnson case, and by other opioid cases yet to be tried, this Article will focus on only one: namely, whether it is appropriate to hold one defendant liable for the cost of correcting a social problem cause by the wrongful conduct of many actors. The Article concludes that some form of market share liability is a better approach than traditional joint and several liability for resolving certain kinds of mass torts.