Legal Newsline

Wednesday, July 24, 2019

Oklahoma's AG is twisting the law to suit his high-profile opioid case, Johnson & Johnson says


By John O'Brien | Apr 24, 2019


NORMAN, Okla. (Legal Newsline) – Oklahoma’s attorney general and the private lawyers he hired – who are earning millions from a lawsuit over the nation’s addiction crisis – are using a mangled interpretation of state law as they seek to generate headlines, one of the sued companies says.

On Wednesday, Johnson & Johnson asked Cleveland County Judge Thad Balkman to toss the remaining claim in AG Mike Hunter’s lawsuit against it, arguing Hunter and his hired guns are attempting to bend state law in a way that would jeopardize any company that ever does business in the state.

“(T)he State’s sweeping new vision for public nuisance, erasing more than a century of Oklahoma precedent and usurping the legislature’s authority, would create a virtually limitless source of liability for commercial actors that do business in Oklahoma,” attorneys for the company wrote.

“No court – not in Oklahoma, not anywhere – has ever acceded to what the State asks this Court to entertain, and for good reason.

“The rule of law is not situational: The State cannot discard it simply to achieve expedient results in high-profile cases.”

Oklahoma’s lawsuit has received more attention than most of the other thousands of cases filed by government entities and health plans. That’s because Hunter scored one of the earliest trial dates, as well as a $260 million settlement with Purdue Pharma that generated national interest, as well as questions from state lawmakers wondering why Hunter got to decide how that money would be spent.

Most will be spent on a research center at Oklahoma State University (Hunter’s alma mater and also his son’s new employer), and $60 million goes to the lawyers hired by Hunter – Whitten Burrage, Nix Patterson and Glenn Coffee & Associates. Those lawyers contributed more than $95,000 to Hunter’s election campaign after they were hired in 2017.

Only $12.5 million will “go towards providing funds to directly abate and address the opioid epidemic’s effects in Oklahoma’s cities and counties,” a Hunter press release said. Cities and counties still have their own lawsuits and are worried about how the State’s settlement will affect them.

After the April 2 settlement with Purdue Pharma, Oklahoma voluntarily dismissed all of its remaining claims against Johnson & Johnson except for the theory of public nuisance.

Janssen Pharmaceuticals, a subsidiary of J&J, made three opioid medications – Duragesic, Nucynta and Nucynta ER. Doing so contributed to the public nuisance that is the opioid crisis, Hunter is arguing.

Public nuisance claims have been tried with limited success. California governments were successful in their case against the companies that made lead paint, but other states were not.

Recent climate change lawsuits allege the fossil fuel industry caused a public nuisance, but two federal judges have found those claims to be inappropriate.

Hunter says Johnson & Johnson “expanded the market for their opioids through a deceptive marketing campaign.”

“Oklahoma has brought a case that is not just novel but radical,” Johnson & Johnson says. “The State’s unprecedented legal theories shred the bedrock principle that an injury must be actually traceable to the party forced to compensate it.”

Specifically, the company argues:

-Public nuisance is limited to harms related to real property or public spaces;

-Alleging public nuisance violates the company’s due process rights, as Janssen wasn’t notified the state’s public nuisance law could apply to it;

-Janssen no longer markets opioids, so it can’t be asked to abate the alleged nuisance;

-Oklahoma is attempting to abate an injury, not a public nuisance; and

-The State can’t prove causation.

“A doctor’s choice to write a medically proper opioid prescription for a patient in chronic pain breaks the chain of causation – even if the known risk of addiction or abuse materializes.”

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.

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Organizations in this Story

Janssen Pharmaceuticals, Inc. Johnson & Johnson Oklahoma Attorney General's Office Oklahoma State University, Stillwater, Purdue Pharma L.P

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