Settling opioid lawsuits has been good for Washington State. But things could end on a sour note if their Attorney General Bob Ferguson follows the failed playbook of other states that took their cases to trial instead of settling.

Almost every state joined a universal agreement with drug companies that is paying tens of billions of dollars to them and to their local governments. Holding out, the Evergreen State instead filed its own lawsuits.

Two suits have been settled, respectively for $113 million and $518 million, payments that will be spread out over 17 years, split between the state and 125 local governments. Drug treatment programs will be a major beneficiary.

The state attorney general estimated the difference is about 10% more than from joining the national settlement. However, that calculation does not offset the amount of additional legal fees.

Still unresolved is the lawsuit against the Johnson & Johnson/Janssen family of pharmaceuticals. And the experience of other states shows the great danger of expecting a big payday in court.

Ask Oklahoma, which I previously represented in Congress. Public officials there had a momentary thrill and dreamed of collecting billions after a trial judge ruled against Johnson/Janssen. But then the state had to beg for just a fraction after Oklahoma’s Supreme Court reversed and denounced the legal arguments as fatally flawed.

The text of the complaint filed by Washington State explicitly relies on the Oklahoma trial court, quoting from it repeatedly. But now that ruling is both wiped out and discredited.

West Virginia and California also ignored the global settlement and also got their novel legal theories rejected in trials.

The legal underpinnings of the opioid lawsuits rarely get public attention, which instead is grabbed by juicy headlines from elected officials denouncing “greedy drug companies” and promising to make them pay for the opioid epidemic.

The epidemic remains real, of course. In 2021 alone, an estimated 107,000 Americans died from drug overdose, with 80,816 succumbing mainly to illicit street opioids. Add to those deaths the many lives and homes shattered by addiction.

But just as defective autos don’t explain all traffic deaths, the epidemic is more complex than just prescription drugs. It also includes massive amounts of precursors and fentanyl crossing the border from Mexico, often shipped there from laboratories in China.

But drug kingpins are a more slippery target than Big Pharma. And cries for personal responsibility of drug users still don’t fix the tragedies.

So what are the novel legal theories used to justify lawsuits against the pharmaceutical industry?

The biggie is what’s known as “public nuisance” law. Usually that means shutting down an illegal drug house “shooting gallery” or perhaps a plant spewing noxious odors.

The opioid lawsuits rely on expanding that legal theory. Washington State’s lawsuit includes 98 references to public nuisance law as the heart of its case.

But the courts have ruled that it would distort our entire justice system to stretch public nuisance law to punish lawful commerce. The U.S. Chamber of Commerce and others label it the “public nuisance monster.”

As the Oklahoma Supreme Court ruled 5-1 in rejecting the theory, “[Otherwise], businesses have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products, i.e., will a sugar manufacturer or the fast food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution.”

Other courts made similar rulings when states pushed their opioid lawsuits to trial. Washington State could roll the dice hoping for a bonanza, but this is legally risky. It could leave Washington State with nothing if it loses, plus the expense of more years of litigation.

The only sure thing is to avoid the mistakes of states like Oklahoma and to settle. That is the only guarantee of more money for programs that help victims of the opioid epidemic.

Former U.S. Congressman Ernest Istook, R-Okla. is currently a practicing attorney. When in office, he worked on multiple issues to combat the scourge of illegal drugs. — Read More of his Reports Here.