Appeal likely to delay opioid funds
Oklahoma won a $572 mill i on verdict against opioid manufacturer Johnson& Johnson Monday, but that money likely won't be available to help stem the state's opioid crisis anytime soon.
Johnson& Johnson attorneys announced plans to appeal Cleveland County District Judge Thad Balkman's decision, so even if the decision is ultimately up held it could be years before the state receives any money, attorneys for the state said Tuesday.
“Two to three years I think is the appellate track on this thing,” said Michael Burrage, one of the state's outside attorneys.
Of course, the state could get money sooner if Johnson & Johnson officials were to change their minds about appealing or enter into a settlement with the state.
So far, the drug company has not shown any indication that it will do either, instead issuing a news release that called the judge's decision “flawed,” and saying it was “confident it has strong grounds to appeal this decision.”
Meanwhile, Oklahoma's attorneys are busy considering a number of legal strategies.
“This is a chess game. It' s not Chinese checkers. I t's chess,” said Oklahoma Attorney General Mike Hunter.
Potential strategies available to the state could include such things as appealing the amount of the verdict or refiling fraud or other claims that the state made against Johnson & Johnson when it filed its initial lawsuit in 2017. The state dropped all but a public nuisance claim against Johnson & Johnson and its subsidiaries in April in order to expedite the
the trial that ended Monday. However, the state retained the right to refile the claims later.
The state could also pursue lawsuits against other companies like pharmacies and opioid distributors.
Hunter declined to say what if any of those strategies the state might pursue, but urged Johnson & Johnson to pay the judgment.
“We' re thinking several moves ahead,” Hunter said.
“Where we go f rom here is ...` strategery,'” he said, quoting from comedian Will Farrell's Saturday Night Live sketch that satirized former President George W. Bush. “Stay tuned.”
The appeals process could be exp edited some if the Oklahoma Supreme Court decides to assume original jurisdiction and handle the appeal directly, rather than requiring it to first be heard by another state appellate court, Burrage said.
“I would hope that the Supreme Court of Oklahoma would retain jurisdiction on this so that we could get a decision sooner rather than later and maybe that could happen within a year,” Burrage said.
If the decision is upheld at the state Supreme Court level, Johnson & Johnson attorneys indicated they would likely ask the U.S. Supreme Court to take up the case.
That could take another year or so, Burrage said.
The state will be pushing to get appeals resolved as quickly as possible, just as it pushed to bring the case to trial as quickly as possible, said Brad Beckworth, another one of the state's outside attorneys.
“We lose one to three people a day here in Oklahoma (to opioid over doses ),” Beckworth said. “So every day that we wait, that's another child, parent, husband, wife that dies. And we also have this problem with babies being born addicted. So I hope our court will retain jurisdiction because that could save us a year to a year and a half, assuming we were to prevail. If we wait another year and a half or two years beyond that ... we could lose another 100 Oklahomans and we can' t wait.”
Terri White, comm issi on er for the Oklahoma Department of Mental Health and Substance Abuse Services, said even though she was hoping the judge would award the state the nearly $17.2 billion that it requested, the $572 million that was awarded would allow the state to take a “giant leap forward that's really going to allow us to potentially be the first state in the nation that actually abates this crisis.”
White said she was pleased that the judge agreed with the state's recommendation for an evidence-based abatement plan that would include funding for such things as treatment, prevention, community education and medical education.