Cleveland County Courthouse
NORMAN, Okla. (Legal Newsline) – The State of Oklahoma's evidence in a closely watched opioid trial versus Johnson & Johnson was again emotionally charged on Wednesday, as attorneys hired by the state attorney general showed a video of a baby quivering from opioid withdrawal.
Tuesday, Oklahoma put the father of an addict who committed suicide on the stand to recount his tragedy.
On Wednesday, Tonya Ratcliff testified. Executive director for Pepper’s Ranch, a 240-acre foster care home in Guthrie, Oklahoma, for abused and neglected children, Ratcliff said babies born to opioid-addicted mothers and suffering from "neonatal abstinence syndrome" had been dramatically on the rise as a result of the epidemic.
A video shown by Brad Beckworth, the Nix Patterson lawyer handling Oklahoma's case on a contingency fee, showed a baby quivering in convulsions from opioid withdrawal, inherited from an addicted mother.
“How does that make you feel?” Beckworth asked.
“Angry, sad,” Ratcliff said. “What training is there for foster parents who have to watch an adopted baby shake and cry, or to help them survive?”
Ratcliff, a foster mother herself of an opioid-exposed child, said there are not enough families in Oklahoma to take in the numbers of children from opioid-addicted parents. Children have to be put in shelters. She said there were 8,000 such children in the state in 2008 and 11,000 by 2011.
“It was skyrocketing,” Ratcliff said. “They (agencies) were doing as much as they could to find homes, but addiction and poverty have been plaguing our foster care system.”
Defense attorneys for Johnson & Johnson asked Ratcliff only if she knew what opioids the children in her care had been exposed to.
Ratcliff said she didn’t know.
The trial in the Cleveland County District Court is being streamed live courtesy of Courtroom View Network. Latest developments in the case include J&J seeking to disqualify the testimony of an opioids researcher who was on the stand for several days, as well as Oklahoma's governor's concern that settlement money won't be appropriated properly.
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 trial 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.
The chief medical examiner for the State of Oklahoma said on Tuesday he had seen a dramatic rise in the number of opioid deaths since the 1990s, though they’ve tailed off the last few years.
“How does it make you feel the number of people who have died from prescription opioids?” asked Drew Pate the state-hired attorney.
“The only word I have for it is tragedy,” said Dr. Eric Pfeifer, state examiner in charge of investigating overdose deaths and a forensic pathologist. “I get up and go to my car in the dark to go to work and I know I’ll have at least two or three of those deaths maybe more.”
Pfeifer said in overdose cases involving multiple drugs it can be hard to distinguish which drug more likely contributed to a death. However, he said his toxicology lab can tell the difference between drugs - for example, fentanyl and morphine.
“Have you seen people die from a fentanyl patch?” Pate asked.
“Yes,” Pfeifer responded.
“Have you seen many from Duragesic?”
“I have personally seen about 20,” Pfeifer said.
“What’s the most common way (overdose)?”
“Using multiple patches on the skin,” Pfeifer said.
“What’s the next-most common?”
Pate asked Pfeifer what the term “nod” was about.
“We call it the 'fentanyl nod,'” Pfeifer said. “The drug is so quick and powerful we find people sitting in a chair with their head dipped (dead).”
Another woman was found sitting head-down in a bathtub.
“When was the term (nod) first used?”
“Five years ago,” Pfeifer said.
Pate exhibited narratives, written accounts of officers responding to overdose deaths. In one, a woman was depressed after a visit to a psychologist and after a physician had quit prescribing for her fentanyl patches and prescribed instead Loratab. She was found with patches in her airway and pronounced dead.
Another narrative listed the drugs fentanyl and codeine found in the system of a person dead from an overdose while yet another described acute intoxication with possible drowning from substances including carisoprodol, meprobamate, butalbital, fentanyl and hydrocodone.
Under cross examination from Sabrina Strong, of the law firm of O' Melveny & Meyers, Pfeifer agreed his examinations sometimes could not determine whether a drug was an illicit-acquired drug or one that had been legally prescribed.
“You can’t tell whether a drug was actually prescribed by a doctor?”
“No,” Pfeifer said.
“You cannot know if the decedent was taking medication as prescribed, correct?”
“That part (knowing if legally prescribed) is not part of a medical examiner’s responsibility, correct?”
“We don’t know if the drugs were diverted?”
“Correct,” Pfeifer responded.
“Or used as directed by a physician?”
On re-direct, Pate asked Pfeifer if his impression from questioning by the defense was that it implied fentanyl patches were not killing people.
“Is that the impression you got?” Pate asked.
“Yes, I’m not sure of the intent, but it seemed they (defense attorneys) were trying to isolate the causes where fentanyl was involved,” Pfeifer said.