Cleveland County Courthouse
NORMAN, Okla. (Legal Newsline) – Attorneys defending Johnson & Johnson in a trial accusing the company of creating an opioid drug crisis in Oklahoma on Monday brought in an expert witness to counter the testimony of Dr. Andrew Kolodny - a witness the company has alleged is a "de facto" member of the State's legal team.
Kolodny, a psychiatrist, has played a central role in the State of Oklahoma’s case by linking narcotics marketing to opioid addiction and overdose deaths. In earlier testimony he maintained that one in four people (25 percent) using long-term prescription opioids had developed an opioid use disorder (OUD).
“Is Dr. Kolodny’s statement about the 25 percent prevalence widely accepted in the medical and scientific community?” asked Michael Yoder, the attorney for Johnson & Johnson.
“No it is not,” responded Dr. Timothy Fong, clinical professor of psychology at the UCLA Semel Institute for Neuroscience and Human Behavior. “The risk factors can change a person’s risk (of opioid addiction) significantly.”
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.
State attorneys said Johnson & Johnson and Janssen should pay $17.5 billion earmarked in a proposed state abatement plan because they caused the epidemic.
Fong told Yoder about 30 percent of his patients suffer from opioid use disorder, or about 18 patients seen per week.
“What is addiction?” Yoder asked.
“Chronic compulsive (drug) use with harmful complications,” Fong said.
Fong described withdrawal complications from opioids to include runny nose, diarrhea, anxiety and cravings.
He listed the risk factors for opioid use disorder as biological including family history, social from abuse or neglect, or psychological from an illness.
He was asked if he took each case on an individual basis.
“Yes,” Fong said. “Every person is different.”
Fong said the incidence of addiction is much lower than one in four (25 percent) for patients without significant risk factors.
“The more risk factors you have, the higher the risk,” he said.
Instead Fong said studies had shown a .19 percent ratio (addiction rate) for patients with no previous history of drug abuse.
Yoder asked about another contention from Kolodny that four out of five people using illicit heroin started on prescription opioids.
“The four out of five were misusing prescription opioids in the first place,” Fong said. “The actual rate of heroin initiation from patients who are taking prescription opioids as prescribed is a very different thing and is not represented in these statistics.”
Fong said studies indicated 1 percent of non-medical pain reliever (NMPR) users had a prior use of heroin and 3.56 percent initiated heroin use within a five-year period following their first NMPR use.
“Are you an expert on marketing (opioids)?” Yoder asked.
“No,” Fong said.
“On the causes of the opioid crisis?”
“Have you an opinion about the causes of the opioid crisis?”
Fong said three drugs are used to treat opioid addiction: methadone, naltrexone and buprenorphine. Methadone has been used for 40 years. Buprenorphine, developed in 2002, is a partial opiate that binds to receptors in the body to restore the brain from changes caused by addiction.
Naltrexone is an opioid antagonist that blocks receptors influenced by addiction and can be given by injection once a month through a product called Vivitrol.
“Is opioid disorder treatable?” Yoder asked.
“Yes,” Fong said.
Yoder asked Fong if he agreed with an assertion by a state's witness that opioid disorder is a life sentence.
“I do not agree,” Fong said.
Fong added that people can recover to live normal lives.
“Use of the term (life sentence) creates shame,” he said.
Brad Beckworth, the state-hired attorney, challenged Fong about his contentions, and compared drug companies to snake oil salesmen.
“Isn’t it true that drug companies promised they would have a magic (long-release) pill, a (pain) cure, but science didn’t back it up?” he asked.
“I don’t have an opinion on the (drug) companies’ marketing,” Fong said.
“You’re J&J’s paid expert,” Beckworth said.
“I’m retained by them,” Fong responded.
“Why did we not have an opioid crisis in 1994?” Beckworth asked.
“I don’t have an opinion,” Fong said.
“Do we have an opioid crisis today?” Beckworth asked.
“What was he (Fong) brought here for?” Beckworth asked Cleveland County District Judge Thad Balkman. “I’m entitled to ask.”
“It goes to the opinion of causation,” Yoder protested.
Balkman sustained the objection.
“Have you ever talked to an Oklahoma doctor about opioid prescribing?” Beckworth asked.
“No,” Fong said.
“How can you go back and talk to your patients after testifying here for the drug companies?” Beckworth asked.
Yoder objected. The objection was sustained.
“Do you know what the state treatment center is called?”
“No,” Fong said.
“Do you know the (Oklahoma) attorney general’s name?”
“Do you know what county you’re in?”
“I do not.”
Beckworth took issue with Fong’s disagreement that opioid addiction was a life sentence.
Fong said such a statement was very powerful and indicated he wanted to give patients hope for recovery.
“What is an acceptable number of prescription opioid deaths?” Beckworth asked.
“I would like to see zero, I would hope it would be,” Fong said.
During further questioning, Beckworth said Fong had been visited at UCLA after the trial began and consulted with J&J lawyers about testifying.
“They (J&J) paid you to attack Kolodny,” Beckworth said.
“I was not, I was paid for my time,” Fong said.