Pain Meds As Public Nuisance? Oklahoma Tests A Legal Strategy Against Opioid Maker

Jackie Fortier, StateImpression Oklahoma

A worldwide megacorporation finest identified for Band-Aids and child powder might need to pay billions for its alleged function within the opioid disaster. Johnson & Johnson was the only real defendant in a intently watched trial that wrapped up in Oklahoma state courtroom this week, with a call anticipated later this summer season. The ruling within the civil case might be the primary that may maintain a pharmaceutical firm accountable for one of many worst drug epidemics in American historical past.

Oklahoma Attorney General Mike Hunter’s lawsuit alleges Johnson & Johnson and its subsidiary Janssen Pharmaceuticals helped ignite the opioid disaster with overly aggressive advertising, resulting in hundreds of overdose deaths over the previous decade in Oklahoma alone.

The trial occurred over seven weeks within the faculty city of Norman. Instead of a jury, a state choose heard the case.

During closing arguments Monday, Hunter known as the corporate the “kingpin” of the opioid disaster.

“What is truly unprecedented here is the conduct of these defendants on embarking on a cunning, cynical and deceitful scheme to create the need for opioids,” Hunter mentioned.

The state urged Judge Thad Balkman, who presided over the civil trial, to seek out Johnson & Johnson answerable for making a “public nuisance” and drive the corporate to pay greater than $17 billion over 30 years to abate the general public well being disaster within the state.

Driving the opioid disaster house has been a cornerstone of Oklahoma’s lawsuit. In closing arguments Monday, one of many state’s attorneys, Brad Beckworth, cited staggering prescribing statistics within the county the place the trial occurred.

“What we do have in Cleveland County is 135 prescription opioids for every adult,” Beckworth mentioned. “Those didn’t get here from drug cartels. They got here from one cartel: the pharmaceutical industry cartel. And the kingpin of it all is Johnson & Johnson.”

Johnson & Johnson’s legal professional Larry Ottaway, rejected that concept in his closing argument, saying the corporate’s merchandise, which had included the fentanyl patch Duragesic and the opioid-based tablet Nucynta, have been minimally utilized in Oklahoma.

He scoffed at the concept that physicians within the state have been satisfied to unnecessarily prescribe opioids as a result of firm’s advertising ways.

“The FDA label clearly set forth the risk of addiction, abuse and misuse that could lead to overdose and death. Don’t tell me that doctors weren’t aware of the risks,” Ottaway mentioned.

Ottaway performed video testimony from earlier within the trial, displaying Oklahoma medical doctors who mentioned they weren’t misled in regards to the medication’ dangers earlier than prescribing them.

“Only a company that believes its innocence would come in and defend itself against a state, but we take the challenge on because we believe we are right,” Ottaway argued.

Johnson & Johnson Fought On After Settlements

Initially, Hunter’s lawsuit included Purdue Pharma, the maker of OxyContin. In March, Purdue Pharma settled with the state for $270 million. Soon after, Hunter dropped all but one of the civil claims, together with fraud, towards the 2 remaining defendants.

Just two days earlier than the trial started, one other defendant, Teva Pharmaceuticals of Jerusalem, introduced an $85 million settlement with the state. The cash can be used for litigation prices and an undisclosed quantity can be allotted “to abate the opioid crisis in Oklahoma,” in response to a press launch from Hunter’s workplace.

Both firms deny any wrongdoing.

The Legal Liability Of ‘Public Nuisance’

Most states and greater than 1,600 native and tribal governments are suing drugmakers who manufactured varied sorts of opioid drugs, and drug distributors. They try to recoup billions of dollars spent addressing the human prices of opioid habit.

“Everyone is looking to see what’s going to happen with this case, whether it is going to be tobacco all over again, or whether it’s going to go the way the litigation against the gun-makers went,” says University of Georgia legislation professor Elizabeth Burch.

But the authorized technique is sophisticated. Unlike the tobacco trade, from which states won a landmark settlement, the makers of prescription opioids manufacture a product that serves a legit medical function and is prescribed by extremely educated physicians — some extent that Johnson & Johnson’s attorneys made quite a few occasions through the trial.

Oklahoma’s authorized staff primarily based its whole case on a declare of public nuisance, which refers to actions that hurt members of the general public, together with damage to public well being. Burch says every state has its personal public nuisance statute, and Oklahoma’s could be very broad.

“Johnson & Johnson, in some ways, is right to raise the question: If we’re going to apply public nuisance to us, under these circumstances, what are the limits?” Burch mentioned. “If the judge or an appellate court sides with the state, they are going to have to write a very specific ruling on why public nuisance applies to this case.”

Burch mentioned the problem for Oklahoma has been to tie one opioid producer to the entire harms attributable to the continued public well being disaster, which incorporates folks battling habit to prescribed drugs, but additionally these harmed by unlawful avenue opioids, comparable to heroin.

University of Kentucky legislation professor Richard Ausness agreed that it’s tough to pin all the issues on only one firm.

“Companies do unethical or immoral things all the time, but that doesn’t make it illegal,” Ausness mentioned.

If the choose guidelines towards Johnson & Johnson, Ausness mentioned, it may compel different drug firms dealing with litigation to settle out of courtroom. Conversely, a victory for the drug big may embolden the trade within the different instances.

Earlier within the trial, the state’s skilled witness, Dr. Andrew Kolodny, testified that Johnson & Johnson did greater than push its personal capsules — till 2016, it additionally profited by manufacturing uncooked components for opioids after which promoting them to different firms, together with Purdue, which makes Oxycontin.

“Purdue Pharma and the Sacklers have been stealing the spotlight, but Johnson & Johnson in some ways, has been even worse,” Kolodny testified.

Kolodny mentioned that’s why the corporate downplayed to medical doctors the dangers of opioids as a basic class of medication, understanding that just about any opioid prescription would profit its backside line.

The state’s case additionally targeted on the function of drug gross sales representatives. Drue Diesselhorst was one in every of Johnson & Johnson’s busiest drug reps in Oklahoma. Records mentioned through the trial confirmed she continued to name on Oklahoma medical doctors who had been disciplined by the state for overprescribing opioids. She even continued to fulfill with medical doctors who had sufferers who died from overdoses.

But Diesselhorst testified she didn’t know in regards to the deaths, and nobody ever instructed her to cease concentrating on these high-prescribing physicians.

“My job was to be a sales rep. My job was not to figure out the red flags,” she mentioned on the witness stand.

The Role And Responsibility Of Doctors

Throughout the trial, Johnson & Johnson’s protection staff averted most of the broader accusations made by the state, as an alternative specializing in the query of whether or not the precise opioids manufactured by the corporate may have triggered Oklahoma’s excessive charges of habit and deaths from overdose.

Johnson & Johnson’s lawyer, Larry Ottaway, argued the corporate’s opioid merchandise had a smaller market share within the state in comparison with different pharmaceutical firms, and he burdened that the corporate made each effort when the medication have been examined to forestall abuse. He additionally identified that the sale of each the uncooked components and prescription opioids themselves are closely regulated.

“This is not a free market,” he mentioned. “The supply is regulated by the government.”

Ottaway maintained the corporate was addressing the determined medical want of individuals affected by debilitating, persistent ache — utilizing medicines regulated by the Food and Drug Administration and the Drug Enforcement Administration. Even Oklahoma purchases these medication, to be used in state well being care companies.

Next Steps

Judge Thad Balkman is anticipated to announce a verdict in August.

If the state’s declare prevails, Johnson & Johnson may, finally, need to spend billions of dollars in Oklahoma serving to to ease the epidemic. State attorneys are asking that the corporate pay $17.5 billion over 30 years, to assist abate the disaster within the state.

Balkman may select to award the complete quantity, or simply some portion of it, if he agrees with the state’s declare.

“You know, in some ways, I think it’s the right strategy to go for the $17 billion,” Burch, the legislation professor, mentioned. “[The state is saying] look, the statute doesn’t limit it for us, so we’re going to ask for everything we possibly can.”

In the case of a loss, Johnson & Johnson is broadly anticipated to attraction the decision. If Oklahoma loses, the state will attraction, Attorney General Mike Hunter mentioned Monday.

This story is a part of a partnership that features StateImpact Oklahoma, NPR and Kaiser Health News.

Kaiser Health News (KHN) is a nationwide well being coverage information service. It is an editorially unbiased program of the Henry J. Kaiser Family Foundation which isn’t affiliated with Kaiser Permanente.

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