Oklahoma may be first test of who will pay for opioid crisis
Big pharma is facing a major test in a small courthouse 20 miles south of Oklahoma City: the first trial at which a jury could decide whether drug companies bear responsibility for the nation's opioid crisis.
Thousands of cities, counties, Native American tribes and others have filed lawsuits up and down the opioid supply chain, alleging various claims of culpability for the crisis that began with widespread abuse of powerful painkillers. Most
of the cases have been consolidated in a major federal action in Cleveland. But as that case lags, smaller state cases like the one in Oklahoma are quickly moving to hold companies to account, creating an early test of how costly the opioid crisis might be for the companies that made billions off the drugs.
Oklahoma's case is scheduled to begin May 28 in Norman. Judge Thad Balkman has repeatedly refused to delay the trial and has agreed to have it televised live every day, raising the prospect of nationwide coverage of grieving families and embarrassing internal company emails. Nearly 800 Oklahomans died of drug overdoses in 2017, about half of them from opioids.
“What happens there is going to set the standard for what happens after it,” said Abbe Gluck, a Yale Law School professor, who predicted that the outcome in Oklahoma could provide leverage to the victor in the larger federal case to follow.
Thirty-six states filed cases in state courts, believing they will fare better in front of local juries that know the toll of addiction firsthand. The state cases have received far less attention than the mammoth case in Cleveland, where there are nearly 1,600 plaintiffs in an action known as multidistrict litigation, or MDL. If the trial holds to schedule, Oklahoma will be the first state to try a case in court.
The next few months will be critical to both cases.
Oklahoma's key defendants
Some believe the drug company defendants in Oklahoma — Purdue Pharma, Johnson & Johnson, Teva Pharmaceuticals, Actavis and others — will never risk a trial in that kind of venue, before a jury of Sooners who have seen the opioid epidemic's impact on their communities.
“We feel confident in our case,” said Oklahoma Attorney General Mike Hunter, who filed the lawsuit in 2017. “We'd like a jury of Oklahomans to hear our evidence and determine the extent to which these companies should be held accountable for what's happened in Oklahoma.”
The state contends that the drug manufacturers' deceptive marketing of their products set off the epidemic and created a “public nuisance” that injured or endangered the health of Oklahoma's citizens. The state could seek more than $1 billion from the companies, either in a settlement or at trial, according to people familiar with the case.
Oklahoma's biggest target might be Janssen Pharmaceuticals, part of Johnson & Johnson. Janssen sells the Duragesic fentanyl patch and sold the opioid Nucynta until 2015.
Janssen said in a statement that “our actions in the marketing and promotion of these medicines were appropriate and responsible. The labels for our prescription opioid pain medicines provide information about their risks and benefits, and the allegations made against our company are baseless and unsubstantiated.”
Purdue said in a statement that it “continues to have active discussions with attorneys general, and is fully engaged with the multidistrict litigation process outlined by Judge Polster to help communities address the opioid crisis,” referring to U.S. District Judge Dan Aaron Polster of the Northern District of Ohio.
In Oklahoma, Purdue will argue that it controls a small share of the market for opioid drugs — about 2 to 3 percent. It claims its sales representatives and marketing initiatives are not responsible for deaths from illicit heroin and fentanyl, a powerful synthetic opioid manufactured overseas that is blamed for many opioid deaths in recent years.
State lawsuits like the one in Oklahoma could expose granular detail about the inner workings of the companies and their attitudes toward profits and the drug crisis. The cases already have revealed private Purdue emails that attorneys general say make the Sackler family— which owns the company— seem insatiably greedy and callous to the suffering opioid abuse has caused.
Bradley Beckworth, one of the private attorneys hired to represent Oklahoma, said individual states are better positioned to take on the drug companies than the huge amalgam of parties involved in the federal litigation.
“With over a thousand competing interests, the MDL process could be a real slow train,” Beckworth said in an interview in the Oklahoma City office where he and other lawyers spend each week before returning to their homes in Austin. “In Norman, we have a court determined to start a trial May 28 with one focus: Oklahoma.”
The lawyers, who sleep on beds in their offices, are sifting through more than 50 million pages of documents obtained during the discovery process, Beckworth said. They have taken hundreds of depositions. Next month, they will add two members of the Sackler family to the total, he said.
A serious concern among lawyers in the state and federal cases is the possibility that some companies might declare bankruptcy before plaintiffs collect potential settlements or awards.
Luke Barefoot, a New York bankruptcy lawyer, said civil litigation against a company would halt as soon as it declares bankruptcy. A bankruptcy filing also could delay the trials.