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Why an opioid case boosts arguments in lawsuit over Tulsa massacre

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Police officers gather ahead of U.S. President Joe Biden's visit to Black Wall Street to mark the 100th anniversary of the 1921 Tulsa Massacre in Tulsa, Oklahoma, U.S., June 1, 2021. REUTERS/Lawrence Bryant

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Nov 19 (Reuters) - An Oklahoma Supreme Court ruling earlier this month that overturned a $465 million judgment against Johnson & Johnson for allegedly fueling the state’s opioid epidemic raises questions in a related but quite different lawsuit.

The high court ruled that Oklahoma's public nuisance law does not extend to making, marketing and selling products, and said a lower court went too far in holding the company liable under the statute.

Generally, public nuisance laws protect shared property and rights. They’re historically linked to the use of land. Think of storing explosives or releasing noxious gas in a mid-city high-rise; or building a shed that juts into a public road, for example.

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Over time, the theory has been extended to claims against parties responsible for harmful products, like tobacco and guns, with varying degrees of success.

Another lawsuit with similarly weighty implications for Oklahoma also relies on public nuisance theory. The case, Lessie Randle v. Tulsa, was brought in September 2020 by three survivors and other victims of the 1921 Tulsa massacre who are seeking remedies for some of the damage caused by and connected to the racist attack.

The lawsuit accuses the city, the Tulsa Regional Chamber and others of causing continuing harm to public health, and infringing on the right to use and enjoy one’s property in Tulsa’s mostly-Black north side.

Some observers believe the Johnson and Johnson ruling forecloses the arguments made in the Tulsa massacre case and other novel applications of public nuisance law.

Michelle L. Richards, a professor at the University of Detroit Mercy School of Law, wrote a law review article cited in the Johnson & Johnson decision which argues that public nuisance litigation is inappropriate in most cases involving lots of plaintiffs. She said the Johnson & Johnson ruling will be a major obstacle to the Randle plaintiffs, despite the "horrifying" underlying allegations in their case.

Attorneys for the Tulsa survivors "will probably argue that the Johnson & Johnson decision is limited to products liability-type claims," Richards said. But "they’ll still have to struggle with the very core of public nuisance theory: it's not used to address wide interference with private rights.”

There's some credence to that point, at least historically. Still, in my view, a balanced reading of the Johnson & Johnson ruling lends support to the Tulsa massacre survivors’ reparations case.

Damario Solomon-Simmons, the Tulsa-based lead plaintiffs' attorney, wasn’t immediately available for comment. He and other attorneys representing the survivors have filed a motion in the Tulsa County District Court requesting a hearing on how the Johnson & Johnson decision affects their claims.

City government officials didn't respond to a request for comment. Lawyers for the city and other defendants have argued that the statute of limitations for any claims have run out, and that survivors haven't demonstrated the specific harms they suffered in relation to the massacre.

The reparations lawsuit is often misunderstood as an allegation that a murderous ethnic cleansing event and a century of institutional racism amounts to a public nuisance. But it’s more accurate to characterize the central claims this way: specific acts during and in the wake of the Tulsa massacre constitute public nuisances because they were uses of property – or negligence related to property – that violated Black Tulsans' collective rights to their own property and community.

The complaint includes undisputed evidence that public safety officials started fires, and refused to put them out, for example. Businessmen and city official enacted bogus zoning laws that impeded reconstruction and deprived Black Tulsans of their homes.

Officials also designated Greenwood for industrial use, and refused to provide public utilities, like paved streets, running water and trash collection. And the complaint centers on officials' decision in the 1960s to place an interstate highway through the Greenwood neighborhood in order to displace Black residents.

In short, the lawsuit isn’t all about general racism or private rights – it includes allegations about specific acts and omissions, and about public rights to clean water and more. Theoretically, at least, the arguments in the reparations case aren't necessarily less plausible than the arguments in the thousands of lawsuits seeking remedies for the opioid epidemic under public nuisance theory (Keep in mind that some judges -- including the lower court judge in the Oklahoma case -- see those public nuisance claims as valid, and that defense attorneys and state officials are in settlement talks over some claims.).

The analysis in the Johnson & Johnson ruling itself also bolsters some of the Randle plaintiffs' arguments.

The Oklahoma Supreme Court’s ruling “draws a critical distinction in public nuisance law that strengthens our clients’ case,” Solomon-Simmons said in the November 12 motion calling the court's attention to the ruling.

First: the court did, in fact, take great pains to limit the ruling to cases about products.

"The nature" of that case was "the marketing, selling, and overprescribing,” Justice James Winchester wrote. “This Court has not extended the public nuisance statute to the manufacturing, marketing, and selling of products, and we" decline to do so.

The court also laid out three reasons why nuisance law “is fundamentally ill-suited" to resolve claims against manufacturers: manufacturing or distribution itself rarely violates public rights; manufacturers relinquish control of products; and, it’s unreasonable to hold manufacturers perpetually liable for anything people might do with their products.

No "analogous considerations are present in this case,” Solomon-Simmons said in his recent motion.

Lastly, the Oklahoma court made it clear that public nuisance claims are viable even when unconnected to land use:“We are not limiting public nuisance to a defendant’s use of real property,” Winchester wrote. (Also, recall that the Randle complaint does indeed include allegations about land use).

In my view, there is much in the Johnson & Johnson ruling that could support the Randle plaintiffs’ argument, and little that cuts against it.

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Reporting by Hassan Kanu

Our Standards: The Thomson Reuters Trust Principles.

Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com

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