Northwest Arkansas Democrat-Gazette
Opioid-case judge finds firm at fault
NORMAN, Okla. — An Oklahoma judge on Monday found Johnson & Johnson and its subsidiaries responsible for fueling the state’s opioid crisis, and he ordered the consumer-products giant to pay the state $572 million.
Cleveland County District Judge Thad Balkman’s ruling followed the first state trial of an opioid manufacturer. The ruling could help shape negotiations over roughly 1,500 similar lawsuits filed by state, local and American Indian governments against drug companies. Those suits have been consolidated before a federal judge in Ohio.
“The opioid crisis has ravaged the state of Oklahoma,” Balkman said before announcing the judgment. “It must be abated immediately.”
The landmark ruling marked a victory for Oklahoma’s attorney general, Mike Hunter. In 2017, the Republican accused drugmakers of creating “a public nuisance,” citing a law that has traditionally been used against loud neighbors, polluters and anyone else who has used property in ways that harmed others.
In this case, Oklahoma said drugmakers did “annoy, injure and endanger
the comfort, repose, health and safety of others,” as well as “render Oklahomans insecure in life and in the use of property,” by flooding the state with opioids while downplaying the drugs’ addictive potential.
Lawyers for Johnson & Johnson said the judgment was a misapplication of the law.
Oklahoma presented the judge with a plan to abate the crisis that would cost between $12.6 billion for 20 years and $17.5 billion over 30 years. The judge’s award would cover the costs of one year of the state’s abatement plan, funding things such as opioid-use prevention and addiction treatment.
“We’ve shown that J&J was at the root cause of this opioid crisis,” said Brad Beckworth, the lead attorney for the state. “It made billions of dollars from it over a 20-year period. They’ve always denied responsibility, and yet at the same time they say they want to make a difference in solving this problem. So do the right thing: Come in here, pay the judgment.”
Attorneys for Johnson & Johnson have said the estimated cost of the abatement plan is wildly inflated.
Johnson & Johnson, which contracted with poppy growers in Australia’s Tasmania state, supplied 60% of the opiate ingredients that drug companies used for opioids such as oxycodone, the state had argued. A Johnson & Johnson subsidiary, Janssen Pharmaceuticals, made its own opioids — a pill whose rights it sold in 2015, and a fentanyl patch that it still produces.
In a statement, Johnson & Johnson and its Janssen subsidiary said they plan to appeal the ruling to the Oklahoma Supreme Court.
“Janssen did not cause the opioid crisis in Oklahoma, and neither the facts nor the law support this outcome,” Michael Ullmann, the general counsel and executive vice president of Johnson & Johnson, said in the statement. “We recognize the opioid crisis is a tremendously complex public health issue and we have deep sympathy for everyone affected.”
Johnson & Johnson reported total 2018 sales of $81.6 billion. Its Janssen subsidiary is one of the largest manufacturers of brand-name drugs in the country.
More than 6,000 Oklahomans have died of painkiller overdoses since 2000, including 4,653 people from 2007 to 2017, the state said in court papers.
The state said almost 4.2 million opioid prescriptions were dispensed in 2017, or 106.7 prescriptions for every 100 people. Oklahoma pharmacies would have had to dispense about 479 opioid prescriptions every hour of the year to hit 4.2 million, the state noted.
THE TRIAL
Before Oklahoma’s trial began May 28, the state reached settlements with two other defendant groups.
Purdue Pharma, the maker of OxyContin, in March agreed to a $270 million deal. Most of that will go to a treatment and research center at Oklahoma State University, although the federal government is seeking a portion of the money.
The state also reached an $85 million settlement with Israeli-owned Teva Pharmaceutical Industries Ltd. in May, two days before Oklahoma’s trial began.
The settlements left the state to pin the blame for its opioid crisis mainly on just one defendant: Johnson & Johnson. The company denied any wrongdoing and chose to fight the accusations in what became a seven-week trial before Balkman. There was no jury.
Hunter called Johnson & Johnson a “kingpin” company that was motivated by greed. He specifically pointed to two former Johnson & Johnson subsidiaries, Noramco and Tasmanian Alkaloids, which produced much of the raw opium used by other manufacturers to produce the drugs.
“At the root of this crisis was Johnson & Johnson, a company that literally created the poppy that became the source of the opioid crisis,” the state said.
Physicians had previously reserved opioids primarily for cancer, post-surgical pain and end-of-life care. But in the late 1990s, opioid proponents argued that pain was not a symptom, but the so-called fifth vital sign — something that could be measured and treated with medication, like blood pressure, breathing, body temperature and heart rate.
The state said Johnson & Johnson took part in the pharmaceutical industry’s effort to change doctors’ reluctance to prescribe opioids.
The industry’s “marketing scheme was driven by a desire to make billions for their pain franchise,” Hunter wrote. “To do this, they developed and carried out a plan to directly influence and convince doctors to prescribe more and more opioids, despite the fact that defendants knew increasing the supply of opioids would lead to abuse, addiction, misuse, death and crime.”
The core of Johnson & Johnson’s defense was that the company was part of a lawful and heavily regulated industry subject to strict federal oversight, including that of the U.S. Drug Enforcement Administration and the Food and Drug Administration, during every step of the supply chain. Lawyers said the company could not be held liable for supplying legal products and ingredients approved by federal and state authorities.
At the trial, company lawyers sought to rebut accusations of a misinformation campaign by attributing actions to third parties and contending that sales calls to doctors did not lead to overprescribing or to the drug crisis.
“At the heart of the state’s case is the premise that stray promotional statements by Janssen over the course of two decades somehow caused Oklahoma’s opioid abuse crisis,” the lawyers wrote, referring to the subsidiary that supplied the opioids.
“Never once, however, did the state identify a single Oklahoma doctor who was misled by a single statement Janssen made,” Johnson & Johnson’s lawyers said in documents filed at the conclusion of the trial.
Sabrina Strong, an attorney for Johnson & Johnson and its subsidiaries, said the companies have sympathy for those who suffer from substance abuse but that the judge’s decision was “flawed.”
“You can’t sue your way out of the opioid abuse crisis,” Strong said. “Litigation is not the answer.”
But on Monday, Hunter said the Oklahoma case could provide a “road map” for other states to follow in holding drugmakers responsible for the opioid crisis.
“That’s the message to other states: We did it in Oklahoma. You can do it elsewhere,” Hunter said.
Also on Monday, the Kentucky Supreme Court declined to review an earlier ruling making public various documents from Purdue Pharma, including testimony from former company President Richard Sackler. The court record was sealed in 2015 as part of a $24 million settlement between Kentucky and Purdue Pharma, which is owned by the Sackler family.
The 17 million pages of documents were being shipped Monday from Frankfort, Ky., to Pike County, where the case originated. The Pike County Circuit Court clerk’s office could not immediately say how and when the documents would be available.