NORMAN, Okla. (Legal Newsline) – In the closely watched opioid trial taking place in Oklahoma, private attorneys representing the State on Monday sought to portray Johnson & Johnson and its drug subsidiary Janssen Pharmaceuticals as marketing drugs like Nucynta for profit in order to feed an opioid epidemic they ignored.
In response, a Janssen executive said there was a need to help patients suffering from pain when Nucynta came out more than 10 years ago.
“You’re setting up a marketing hook with Nucynta,” said Brad Beckworth of Nix Patterson, one of the firms hired by Attorney General Mike Hunter that has already reaped millions in fees from high-profile settlements.
“You create a need; you’ll have a solution (drug).”
Kimberly Deem-Eshleman, southeast regional business director for Janssen Pharmaceuticals, said there was an “under-treatment” of pain for patients at the time Nucynta was put on the market in 2008.
A company statement in a document from 2007 read “pain is mis-managed and under-treated.”
“This was 16 years after (marketing) Duragesic,” Beckworth said.
“Yes,” Deem-Eshleman said.
“You’re still saying pain is under-treated,” Beckworth said.
“We are, yes,” Deem-Eshleman said.
Beckworth said Janssen was expanding the drug market with the launch of Nucynta despite the fact that OxyContin sold by Purdue Pharma of Connecticut and Duragesic were already on the market.
“Yes,” Deem-Eshleman agreed.
The bench trial in the Cleveland County District Court is being streamed live courtesy of Courtroom View Network.
The suit launched by Hunter is one of more than a thousand around the country that alleges that J&J and Janssen carried out a fraudulent advertising campaign to over-supply opiates in Oklahoma for profits leading to an epidemic Hunter called the worst in the state's history. J&J's opioid products are Duragesic, which dispenses opioids by the use of a timed-release patch, and a pill called Nucynta.
It's the first opioid trial under the "public nuisance" legal theory, attempting to hold pharmaceutical companies, distributors and pharmacies liable for the nation's addiction crisis. An Oklahoma law professor recently told Legal Newsline that use of the public nuisance claim is improper and that Hunter's case is really a products liability case.
A North Dakota judge recently dismissed that state AG's public nuisance claims. In the federal multidistrict litigation housing most of these lawsuits, bellwether trials have yet to begin.
Two other co-defendant pharmaceutical companies, Purdue and Teva Pharmaceutical based in Israel, recently settled with Oklahoma - $270 million from Purdue and $85 million from Teva. That left J&J (and Janssen) as sole defendants in the case.
In the Purdue Pharma settlement, private attorneys took in $60 million, while about $200 million went to a research project at Oklahoma State University, which is Hunter's alma mater.
Purdue officials pleaded guilty in 2007 of misleading the public about the risk of addiction from OxyContin and agreed to pay $600 million, at the time one of the largest pharmaceutical settlements in U.S. history.
This was the third day state attorneys questioned Deem-Eshleman, who ran marketing of the drug Nucynta for Janssen.
Beckworth exhibited an advisory company document from 2001 that stated “over-promising on the lack of abuse is what got OxyContin in trouble and Duragesic should not make the same mistakes.”
“They (sales reps) wanted to go in and educate doctors on the risks and benefits of the products,” Deem-Eshleman explained.
“It was not just the state, but private and cash (customers) you were trying to sell (drugs) to, everyone including Blue Cross and Blue Shield,” Beckworth said.
“It was across all those payors,” Deem-Eshleman agreed.
“You were selling drugs that were addictive. You only trained (reps) about addiction if you could move product and you could make more money on it," Beckworth said.
“No,” Deem-Eshleman responded.
Beckworth said doctors who might be prescribe the opioid drugs were treated to lunches to hear the sales pitches.
Deem-Eshleman explained that doctors only had free time to hear the information during lunch.
“You paid for the lunches,” Beckworth said.
“We would pay for them, yes,” Deem-Eshleman said.
In response to a statement from Beckworth that company officials knew there was a problem with opioid addiction, Deem-Eshleman said the company sought to balance the need for managing pain while avoiding addiction.
A company document exhibited in the court read, “development of addiction when opioids are used is low.”
“Fear of addiction is a barrier you wanted to take down,” Beckworth said.
“Not necessarily,” Deem-Eshleman said.
“If you take too much of an opioid, what happens?” Beckworth asked. “You can die, right?”
“Potentially, yes,” Deem-Eshleman said.
Beckworth said the company had attempted to influence sales of its drugs by targeting key opinion leaders, hiring expert speakers to appear at pain management events, and through money contributions to third-party advocates such as the American Pain Foundation. The nonprofit organization was criticized for its ties to the pharmaceutical industry and ceased operations in 2012.
Deem-Eshleman explained the company would partner with such organizations.
“You gave them money,” Beckworth said.
“Yes, for different projects,” Deem-Eshleman said, indicating that some of the funding went for information-sharing, for example operating a booth at trade shows.
According to a chart displayed by Beckworth, in 1999 the American Pain Society received $10,675 from Janssen. In 2002 the figure had jumped to $111,125, then dropped off in subsequent years after the Nucynta drug went off-patent.
“If you go off-patent, you’re not educating (about the drug),” Deem-Eshleman said.
“This had nothing to do with educating and everything to do with marketing,” Beckworth said.
“I wouldn’t say that,” Deem-Eshleman said.
“You knew by 2011 we had a serious teen prescription drug problem,” Beckworth said.
“We knew there was a teen drug abuse problem,” Deem-Ehsleman agreed.