Oklahoma's hired guns continue to portray Johnson & Johnson as evil to judge in opioid trial

By John Sammon | Jun 6, 2019

Cleveland County Courthouse  

NORMAN, Okla. (Legal Newsline) – On Wednesday, private attorneys hired by the State of Oklahoma on a contingency fee accused Janssen Pharmaceuticals, the drug arm of Johnson & Johnson, of ignoring the warning signs of a nationwide addiction crisis in order to maximize profit.

“You decided to cut and run and take the money with you,” said Brad Beckworth with Nix Patterson, one of the law firms hired by Oklahoma Attorney General Mike Hunter.

“I don’t believe we did that,” responded Kimberly Deem-Eshleman, southeast regional business director for Janssen Pharmaceuticals and the head marketer of the company’s opioid pill Nucynta.

Beckworth compared the selling of opioid drugs during a time of escalating overdoses to letting a lion out of a cage. He called it the worst man-made crisis in the history of Oklahoma.

“Pain (to Janssen) was a greater concern than addiction,” Beckworth said.

“I don’t agree with that,” Deem-Eshleman said.   

The closely watched 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, as well as other opioid makers and distributors, flooded the country with opiates. J&J's opioid products in addition to Nucynta are Duragesic, which dispenses opioids by the use of a timed-release patch.

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, 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.

Deem-Eshleman appeared this week as a lead spokesperson for Janssen. Under questioning from Johnson & Johnson’s defense attorney Larry Ottaway with the firm of Foliart, Huff, Ottaway & Bottom of Oklahoma City, she talked about the company’s code of conduct credo.

“Our (J&J) organization credo talks to the responsibility to our patients, mothers and fathers, doctors and nurses, employees and finally to our stockholders,” Deem-Eshleman told a jury. “We try to live up to this.”

“Are those just words to you?” Ottaway asked.

“No,” Deem-Eshleman said.

Deem-Eshleman described Janssen as an incredible organization.

“It practices the highest integrity, with medications to improve people’s lives every day,” she said.

“Do you believe Duragesic and Nucynta are unique (products)?” Ottaway asked.

“I do,” Deem-Eshleman said.

Deem-Eshleman described a prescription drug abuse information program began in 2009 for teenage students in Oklahoma schools called Smart Moves/Smart Choices running in conjunction with the Association of School Nurses.

“If someone said 'was this marketing (drugs) to youth,' what would you say?” Ottaway asked.

“It did not,” Deem-Eshleman said.

Another program called “Imagine the Possibilities Pain Coalition,” sponsored by Janssen, brought opinion leaders together in internal meetings to discuss issues of pain management. Two groups to be influenced included elementary school students (through coaches) and returning military veterans.

During cross-examination Beckworth asked Deem-Eshleman if she knew that a school (Edmond, Okla.) that had received a presentation (prescription drug abuse) was an at-risk school.

“I didn’t know,” Deem-Eshleman said.

Beckworth said the company sold the drug products and contributed nothing to help abate the opioid epidemic. He asked Deem-Eshleman if she had rehearsed her trial testimony beforehand.

“I did not rehearse,” Deem-Eshleman said.

“Did you research abatement?”

“I did not.”

Beckworth has been critical of what he contended was the company’s use of sales representatives to promote and sell opioid drugs to prescribing doctors without warning of the risks. He took issue with a phrase appearing in sales literature that said, “The hook,” referring to the successful selling of the drugs to prescribing doctors.

He also criticized what he said was a company finding during the opioid crisis that pain was “under-treated.” The drug Nucynta was put on the market in 2008.

“How many times did your sales reps tell doctors it’s okay if they don’t have to use opioids (for patients)?” Beckworth asked.

“Our reps wouldn’t tell doctors how to treat pain,” Deem-Eshleman said.

Beckworth said the company had made 18,300 sales calls to doctors in Oklahoma.

“You were pouring kilo after kilo of opioids into the state and it did not fix the problem of pain,” Beckworth said.

“There is an opioid crisis,” Deem-Eshleman said during further questioning.

Duragesic uses a substance called “fentanyl,” 100 times more potent than morphine and 50 times more potent than heroin according to Medical News Today. The warning label described it as an opioid of the morphine type and that such drugs are sought by drug abusers.

Beckworth noted Janssen invented fentanyl (in 1959).

Deem-Eshleman agreed the company had expanded its drug line to include opioid drugs for non-cancer pain.

She explained the expansion was necessary because some patients needed a further analgesic (pain reliever). Johnson & Johnson also markets the over-the-counter drug Tylenol.

Beckworth disagreed with the claim opioids had “low-abuse” potential.

“One pill can kill, right?” he asked.

“Potentially,” Deem-Eshleman said.

“There is a death potential,”

“If used inappropriately,” Deem-Eshleman said.

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Johnson & Johnson Nix, Patterson & Roach Oklahoma Attorney General's Office

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