Oklahoma Named Judicial Hellhole Mid-Year
In an atypical summer addition to the annual Judicial Hellholes list, Oklahoma takes a place among perennial problematic lawsuit havens like California, Florida, Missouri and New York. Motivating the move is a slew of concerning and expansive decisions from the Oklahoma Supreme Court as well as unprecedented expansionary litigation brought by the Oklahoma Attorney General against pharmaceutical manufacturers.
Long a leader in legislative reform to rein in high-dollar and abusive lawsuits, Oklahoma faces a State Supreme Court that continues to overturn these thoughtful reform packages based on peculiar reads of the state constitution. Earlier this year, the court overturned a legislative package limiting the noneconomic damages that can be awarded using legal logic that seemed more to be in search of a specific result than based on an impartial read of the law. Noneconomic damages compensate for inexact, subjective harm like “pain and suffering” or “emotional harm,” rather than defined damages like medical expenses, lost income or property damage. The Supreme Court also expanded damages to apply clearly outside the bounds of a statute and undermined state workers’ compensation reform with an unconventional legal procedural about-face.
The eyes of business leaders across the country are on Oklahoma as the Attorney General attempts to use a speculative legal theory to place the blame for the state opioid epidemic entirely on pharmaceutical manufacturers. If this case succeeds, this new legal theory could be opened up to use against manufacturers and producers across the state. This same legal theory has been attempted against oil and gas producers for climate change damages and household product producers for using a large category of chemicals called PFAS regularly included in everything from nonstick cookware to firefighting materials.
To shed the Judicial Hellhole title and provide predictable justice for Oklahoma businesses, Oklahoma needs to focus on reining in its litigation problem that can get in the way of innovation, employment and manufacturing. Finding ways to reinstate reasonable noneconomic damages limitations, to narrow the broad public nuisance statute that has allowed merit-light opioid litigation to move forward, to replicate reasonable product liability limitations neighboring states have embraced, and to provide better oversight of attorney contracts in state litigation would help.