Legal Newsline

Thursday, April 9, 2020

Oklahoma's case turns emotional in opioid trial vs. Johnson & Johnson


By John Sammon | Jun 19, 2019

Cleveland County Courthouse

NORMAN, Okla. (Legal Newsline) – A Connecticut businessman recounting the heartbreak of his son’s death from drug addiction on Tuesday outlined steps to end the stigma of the disease and to make treatment improvements in a trial to determine if Johnson & Johnson helped cause a prescription opioid epidemic.

“This is not about my son anymore; my son has passed,” Gary M. Mendell told the court. “This is about everybody’s son, all people. The system needs to be changed.”

The trial in the Cleveland County District Court is being streamed live courtesy of Courtroom View Network.

Mendell's emotional testimony was a 180-degree turn from previous days, when an opioids researcher spoke to Johnson & Johnson's marketing of its products. The company is now moving to disqualify the testimony of Dr. Andrew Kolodny, whom J&J called a de facto member of Oklahoma's legal team.

Mendell had run a successful business as CEO and founder of HEI Hotels & Resorts in Connecticut until his 24-year-old son Brian died after struggling with opioid addiction. The experience led Mendell to form Shatterproof, a nonprofit organization advocating for improvement of drug treatment services.

Oklahoma Attorney General Mike Hunter alleges that J&J and its prescription drug subsidiary Janssen Pharmaceuticals 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 brands are Duragesic, which dispenses opioids by the use of a timed-release patch, and a pill called Nucynta.

Thousands of cases are still pending around the country and the Oklahoma case is being followed nationwide. It's also 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. Critics of the nuisance claim say the state’s case is in reality a products liability case.

Two other co-defendant pharmaceutical companies, Purdue Pharma of Connecticut and Teva Pharmaceutical based in Israel, earlier 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 their opioid pain killer OxyContin and agreed to pay $600 million, at the time one of the largest pharmaceutical settlements in U.S. history.

Mendell said his son began smoking marijuana as a teenager in high school and despite enrolling in a wellness program, his addictions worsened with the use of the opiate drugs Xanax, OxyContin and eventually heroin.   

An exhibited photo showing his son during a home visit four weeks before his death brought tears to Mendell's eyes.

“My son would tell me I wish people would realize I’m not a bad person,” Mendell said. “I’m a good person with a disease.”

Brian Mendell took his own life in October of 2011.

Mendell said his son had undergone eight treatment programs for addiction but they were ineffective.

“I asked at one program if they treat for anxiety and they said no we don’t do that,” Mendell recalled. “Another program had him (Brian) scrubbing toilets, they were saying we need to build character.”

Mendell said he could not find treatment for opioid addiction based on  science and the latest research. After his son's death and after receiving calls from people with similar experiences, he said he decided to found a small charity (Shatterproof). The goal was to end the incompetence in drug treatments and the stigma faced by sufferers, he says.

“Of people questioned 44 percent said the addicted had a weak will and poor discipline, and over 80 percent said they were uncomfortable associating with someone who is addicted. How does that make the addicted feel?” Mendell asked.

Mendell said cancer patients can talk about their condition, but those addicted often keep their condition a secret because of the shame.

“Some say why should I treat them, they’re weak, better to let them die off,”  he said. “Researchers had knowledge that could have saved my son’s  life. But it wasn't being used."

Addiction results from needing a drug to not feel terrible, an urge that lasts all day every day, Mendell noted.

“It’s like an itch in your head you can’t scratch,” he said.

Mendell said his nonprofit acquired investors and donors. 

State laws were targeted adding 16 new bills to improve treatments in 14 states.

Existing systems had few standards of treatment, Mendell explained, but were a hodgepodge of differing approaches.

“There were 14,000 unregulated programs all doing whatever they wanted to do,” he said.

Mendell said the goal has been to develop “evidence-based” practices to improve care provider training, and to produce a standardized set of principles for the providing of care.

The nonprofit has been working to coordinate efforts with a number of agencies including officials at Medicaid, insurance companies representing 230 million people and the President’s Commission on Combatting Drug Addiction.

Reggie Whitten, the State-hired, attorney asked Mendell how his effort was originally prioritized.   

Mendell said three basic areas were initially targated for improvement; the social, how the public viewed addiction, the self, how the addicted viewed themselves, and the systems in place including criminal justice, employer (jobs) and educational.

“I was not an expert scientist or researcher, but I could bring a business perspective that could make me unique in this field,” Mendell said.

The State of Oklahoma is proposing its own opioid abatement program. Estimates from state attorneys place the cost as high as $17 billion over perhaps 30 years to undo the epidemic.

Mendell said improvements in areas like HIV infection, domestic violence and marriage equality took decades to realize.

“Abatement takes time,” he said.

Mendell said he reviewed the state’s plan and approved of its line items, but the amount listed for "stigma reduction" to educate the public about addiction treatment and pain management, set at $26.5 million with less in following years, he called "woefully low."

"Unless we reduce the stigma (from addiction) we won't maximimze our dollars in the other areas," he said.

Under cross-examination Mendell told Larry Ottaway, the lawyer for Johnson & Johnson, that his son had been proscribed opioid drugs after having his wisdom teeth extracted as an adolescent.

“We were shocked at the amount (opioids),” Mendell said.

“Do you remember if it was Nucynta or Duragesic (Johnson & Johnson drugs)?” Ottaway asked.

“I don’t,” Mendell said.

“But Xanax was prescribed?”


Ottaway asked if Medicaid in Oklahoma had been expanded to include more opioid addiction treatment.

“It is my understanding they (state) have not,” Mendell said.   

Mendell indicated the cost to deal with the epidemic is little compared to the cost of further addiction.

“There is an epidemic,” Mendell said. “The cost to society is much more than the cost to abate.”

Mendell said the State of New York enacted a law mandating that doctors consult a data base before filling a prescription to check and see what drugs a patient has been taking.

He added that Oklahoma currently did not meet such “best practices.”

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Organizations in this Story

Purdue Pharma L.POklahoma Attorney General's OfficeNix, Patterson & RoachJohnson & Johnson