NORMAN, Okla, (Legal Newsline) – Attorneys for Johnson & Johnson and its opioid drug manufacturer Janssen Pharmaceutics on June 19 asked Cleveland Country District Court Judge Thad Balkman to decide if the testimony of a Connecticut businessman who founded a nonprofit to fight drug abuse should be allowed as evidence in a trial accusing the companies of creating a drug epidemic.
Requesting an “offer of proof,” the attorneys for J&J contended that testimony given by Gary Mendell an expert witness for the state in a deposition prior to the start of trial on May 28 did not provide enough information to allow defense attorneys to question the witness properly.
“At his deposition, Mr. Mendell was not prepared to render opinions on the state’s abatement plan, depriving the defendants (J&J) of their opportunity to cross examine him in preparation for trial,” the offer of proof document read.
The purpose of an offer of proof is to make it known to a court the substance of excluded evidence.
The trial in the Cleveland District Court is being streamed live courtesy of Courtroom View Network.
Oklahoma Attorney General Mike Hunter is suing Johnson & Johnson and Janssen alleging that the companies 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.
The State of Oklahoma is proposing its own opioid abatement program. Estimates from state attorneys place the cost as high as $17.5 billion over perhaps 30 years to undo the epidemic.
State attorneys intend Johnson & Johnson and Janssen to pay the cost for the abatement plan, not taxpayers, saying the companies are responsible for the opioid epidemic.
Mendell, formerly a successful businessman in the hotel industry, appeared as an expert witness for state-hired lawyers during trial on June 18. He said the death of his 24-year-old son Brian from an opioid overdose in 2011 led him to establish Shatterproof, a New York-based nonprofit advocating for improved drug services.
Much of his testimony centered on the efforts of his own organization to battle the epidemic, for example working with government officials including the President’s Commission on Combating Drug Addiction. Mendell said in addition to beefing up treatment and intervention services the stigma of opioid addiction among the public needs to be removed so that people will seek treatment.
He said addiction is a disease one should not be ashamed of.
Mendell also said more emergency funding was needed to combat the drug crisis through retraining of healthcare workers and consumers.
During his trial testimony, Mendell said he had 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 maximize our dollars in the other areas," he said.
Attorneys for Johnson & Johnson said Mendell’s prior deposition testimony lacked the particulars that would have allowed them to question him more thoroughly during his trial appearance.
“Mr. Mendell was not prepared to render opinions,” the offer of proof request read. “At trial Mr. Mendell answered numerous questions about the state’s abatement plan-----questions he was unable to answer at his deposition."
According to J&J attorneys Mendell at his deposition was quoted as saying, “the trial doesn’t begin until May 28, so I plan to prepare in more detail than I have today.”
Johnson & Johnson attorneys last month asked Balkman to strike the testimony of Dr. Andrew Kolodny, a psychiatrist who plays a central role in the State of Oklahoma’s case by linking narcotics marketing to opioid addiction and overdose deaths.
Calling Dr. Kolodny “a de facto member of the State’s legal team,” J&J said Oklahoma gave the Brandeis University researcher unfettered access to some 90 million internal documents obtained through discovery and used his expert testimony to “pollute the trial record with rampant hearsay, rank speculation, and the state’s own take on the evidence.”