August 26, 2019, may go down as a day in infamy when the courts allowed a frivolous lawsuit to squeeze through the bench on its way to attack the Second Amendment of the United States Constitution. This has been a long-standing battle for the right to “keep and bear arms” as written and so vehemently defended by our Founding Fathers. The Honorable Judge Thad Balkman of the Cleveland County District Court just sent a volley of serious attacks against our freedoms that will forever change history.
Background
The Cleveland County District Court was destined to hear the case on Oklahoma’s opioid crisis, between the Oklahoma Attorney General Mike Hunter (R) and the Conglomerate Johnson’s & Johnson’s subsidiary Jenssen. This has been a long-running trial now for over two years. Evidence was heard on both sides, documents, and witnesses from parents and partners of deceased opioid users.
After some intense deliberation, the Honorable Judge Thad Balkman handed down a verdict citing that the Defendants’ “actions caused harm” (1) “because those actions annoyed, injured or endangered the comfort, repose, health or safety of Oklahomans” (1). He ruled that the “drugmaker Johnson & Johnson helped ignite the state’s opioid crisis” (2). The judge then ordered $572 million to be paid by the Defendants, stating from the bench, “The opioid crisis has ravaged the state of Oklahoma and must be abated immediately” (1).
From the Trial
Before the trial was even set, the Oklahoma Attorney General asked the manufacturer to pay huge sums of money to settle the case outside of court. This is customary for many cases, as 97% of all civil cases settle before trial. The Oklahoma Attorney General asked for a sum of $17.5 billion in his lawsuit, far greater than a reasonable settlement. In mediation, this tactic is called the extortion offer.
I, for one, was watching most of the trial unfold, and am alarmed at how this verdict was reached. Witnesses were crying and sobbing as they remembered their loved ones slipping away or recounting how their loved one “didn’t want to die.” Playing on every channel during the trial were commercials touting these same losses and heartbreaks. This is sad and extremely painful to watch, but even more so for those that live through this catastrophe.
But is it Johnson & Johnson’s fault?
One individual recounted how their adult child started using pain killers (opioids) and continued even after they recovered. Another described how their loved one couldn’t get the opioids from the prescribing physician, so they resorted to stealing prescriptions and buying prescription medications illegally.
Every day, the trial showcased people who have suffered from the opioid epidemic, while also railing against the carelessness of Johnson & Johnson to allow people to become addicted to opioids.
One such commercial told a story of how their son started taking opioids after an injury and then continued to take the opioids afterward to get “high.” They go on further to say their son “didn’t want to die.”
Reality Check
How did the Honorable Judge Thad Balkman conclude that Johnson & Johnson was at fault for people unlawfully obtaining prescription medications and subsequently overdosing on them? Where was the prescribing physician? Was the physician still prescribing the opioid to the patients?
Where is the connection that led the Honorable Judge Thad Balkman to realize that Johnson & Johnson or its subsidiary Jenssen were in some manner giving out or prescribing a class 2 pharmaceutical?
When did a person “knowingly” allow their son to continue taking a high potent prescription medication to get “high” become the standard to penalize the manufacturer? This comes down to personal responsibility. If you eat MacDonald’s every day while not exercising, is it MacDonald’s fault for your potential health problems?
I have grave concerns that a Republican Attorney General and a Republican District Judge were moved by emotions rather than facts. Even if the manufacturer did not admit to the total addictiveness of the pharmaceutical, the facts do not link the manufacturer to the distribution, nor does they link the manufacturer to the prescription.
Opioids must be prescribed by an attending physician who is licensed and trained for years on the addictive nature of opioids. The medications can only be obtained by a prescription taken to a pharmacy to be dispensed. There have been more restrictive laws and double-checks in place for years to prevent unethical physicians from prescribing opioids. Removal of licensure, lawsuits and prison sentences have been handed down for medical physicians improperly prescribing high-level narcotics. Have we forgotten the Michael Jackson case?
Neither the unlawful purchase of someone else’s medication, the theft of another person’s prescription, nor the theft of personal property to sell or barter to obtain a class 2 pharmaceutical narcotic constitute a manufacturer’s liability to warn about addictiveness. It also doesn’t point to the manufacturer helping “ignite the state’s opioid crisis” (2).
The standard as stated by the Honorable Judge Thad Balkman, “actions annoyed, injured or endangered the comfort, repose, health or safety of Oklahoman’s” (1) is quite a slippery slope.
You can claim: the cashier was rude and this “annoyed” me — sue the produce manufacturer, the tire blowing out from a passing car “endangered my comfort” — sue the automotive manufacturer, or the steel manufacturer uses to produce the automotive, the smoke blown outside the door harmed my “health and safety” — smoke was from a jet flying above — sue the jet fuel manufacturer, and the alarm clock disturbed my “repose” — sue the plastics manufacturer who supplied the alarm clock housing.
The standard is too vague and broad, creating an umbrella law to attack anyone for anything, regardless of their connection to the “action.”
Our Court System
Our courts are made up of laws passed by the legislature for the betterment of society. They are made to uphold our Constitutions, both state and federal. The most noted of all laws are not cited; they are bench laws or precedent. Precedent is when a judge makes a ruling on a case.
These are our most dangerous and harmful laws we have in the country and why we are in such grave danger now. When a judge sets a precedent, every case coming afterward seeks to hold by that ruling. Once lawyers find a favorable precedent, they can appeal to the former judge’s findings and how they ruled. Now, that judge can choose to ignore the previous litigation, which will end up in an appeal for not following precedent; affirm the precedent and award in line with the former judge, which most commonly happens; or overrule the former judge’s ruling, creating the opportunity for further appeals to the superior court.
This is not easy as most litigants, present case excluded, do not have the tens for thousands of dollars to fight a case to the superior courts or all the way to the United States Supreme Court. People accept the ruling by precedent and are forced into servitude or bankruptcy.
A History of Fruitless Attacks on the American Constitution
Everyone remembers the MacDonald’s case where the person was burned with a scorching cup of coffee. What people do not understand is the case was not about hot coffee but under-insulated cups and improper lids when handing out 120-degree beverages. All we remember is a person was burned by coffee, and they were awarded a huge sum of money. This case has been cited as precedent in many later cases to justify penalizing companies for actions that may or may not truly be the Defendant’s fault.
This same burger giant was targeted again years later for “making people fat.” This spawned videos and antics where healthy people who worked out daily, ran marathons, and ate a moderate green diet went on an eating binge to consume thousands of calories more than usual. This led to ignorant findings that were touted to prove that the fast-food chain was knowingly harming the citizens.
We have all heard of the attacks on the auto manufactures for a half-century. When the vehicle is made improperly or defectively, the manufacturer absolutely bears responsibility. When the manufacturer knows of a defect and chooses to ignore the danger, the manufacturer is certainly liable. But it has been ruled many times that the automobile manufacturer does not bear guilt for driver error and weather conditions that exceed the manufacturer’s intended purpose. This case now opens the door for lawsuits against automobile manufacturers when someone drives 200 miles on the doughnut spare, and it blows out.
Everyone remembers the lawsuit to sue the ammunition manufactures for causing death because someone was shot and killed by a bullet built for “one purpose, to kill.” Well folks, all bullets are made to kill, not just some.
Now, certain groups are looking to sue the gun manufactures for someone deciding to commit a deadly act with a firearm. It wasn’t until later we found out the weapon was, in fact, illegally obtained by a person and then was used in an illegal act. I do believe this case was dropped due to lack of, you guessed it, precedent.
How this Affects Our Freedom and Second Amendment
There has been an attempt to hold gun manufacturers liable for mass murders and open the door for Red Flag gun laws for decades. Until now, they have not had a precedent for the extermination of our Second Amendment rights. This precedent has far surpassed the previously discussed attempts from the left to seize and prosecute law-abiding American manufacturers for acts outside of their control.
This dangerous precedent places an independent fifth-party manufacturer as liable for the actions, whether legal or illegal, of people whom the manufacturer has zero control over. Further, the manufacturer has no oversight, supervisory control, prescribing directive, or ability to consult before a prescription for the manufacture’s product is dispensed. Not only this, but there are a second-party intermediary (physician) and a third-party intermediary (pharmacist) who prescribe and procure the product for the user under the direction of established fourth-party healthcare regulatory bodies which lie outside the direction, control, supervision or oversight of the manufacturer.
With this awful tragedy of justice, anyone injured or killed from a firearm, whether that be an accident, suicide, or murder, now has precedent for claiming the manufacturer, not the actor nor seller nor distributor, was at fault for the injury or death, whether or not the firearm was obtained lawfully or illegally nor was the obtainer of the gun legally allowed under law to be in possession of a deadly weapon. This puts in place the direct link to attack the Second Amendment of the Constitution of the United States of America and our God-given right to keep and bear arms by extortion or trial.
Once someone is killed or injured, the prosecutor or litigating plaintiff will try to settle for millions or even billions of dollars from the manufacturer. This will be touted; “you see what happened to Johnson & Johnson.” This extortion is used in mediation cases every day as a bargaining chip.
It’s a “do as I say or else” threat that has teeth when there is precedent. Once the Honorable Judge Thad Balkman’s gavel cracked, people started lining up to extort funds from all types of manufacturers. It is said there are 30 other states’ attorneys general waiting for the ruling on the Oklahoma opioid case. They now have precedent for extortion of millions of dollars or retry Oklahoma’s Attorney General Mike Hunter’s extortion of $17.5 billion.
If extortion does not work, the legal team goes to work to set in place the precedent that “because those actions annoyed, injured or endangered the comfort, repose, health or safety” (1). This is a slippery slope that has devastating implications. You can now, theoretically, sue or extort money from an electric company because they manufactured the electricity that burned your hand off while you were stealing copper from a city transformer during a rainstorm.
We will see a surge in attacks to extort money from anyone and everyone in mediation and settlement conferences dealing with manufacturers from this date forward. Once they can attach a claim to the manufacturer for the production of a product, then they will have legal right to further restrict the purchase, use, access and carry of all weapons as a dangerous and harmful manufacturer is at fault for manufacturing (drugs, guns, ammo, cars, gasoline, etc.).
There have already been attacks on our gun manufacturers, especially Armalite, the manufacturer of the AR-style rifle. These attacks have waned even to get started because there was no precedent of a removed party manufacturer liability for the use or misuse of a product by an actor who obtained a firearm, whether legally or illegally, and acted with this firearm outside the manufacturer’s guidelines, but that has changed to society product. Once someone is injured or killed in a shooting, it will be open season. If you can claim the manufacturer was a fault for building the product, you can theoretically claim the school was at fault for being the place of the attack, the police were at fault for not stopping it, the parents were at fault for sending their children to school and the bus driver was liable because he transported the student with a weapon. These are all removed party unrelated uninvolved actors.
Conclusion
The first attack on our society, if this ruling is not quickly eviscerated, is the gun and ammunition manufacturers. They will extort billions for suicides to mass shootings touting this precedent. These cases are “bad law” and should not be upheld by the superior courts. This precedent has such a range of implications that we will see frivolous lawsuits and extorted mediation settlements for decades ranging into the billions on removed party product manufacturers whom will have no choice but to shut down due to liability or charge astronomical prices.
Our rights as citizens of the United States, especially here in Oklahoma, just took a back seat as we can no longer pursue happiness as entrepreneurs. We will forever be looking over our shoulder to see if the candle we made and sold to a distributor, who sold the candle to Walmart, bought by a person in another state, was left burning in a window with drapes when everyone left for ice cream and the wind blew the drapes over the flame and the stray cat under the porch died. This is the dangerous precedent that was set today in infamy.
(3)https://www.cnn.com/2019/08/26/health/oklahoma-opioid-judge-thad-balkman-profile/index.html
