NORMAN, Okla. (Legal Newsline) – A sales representative for Janssen Pharmaceuticals on Tuesday told a courtroom his company sold opioid drug products that were safe and effective, while attorneys for the State of Oklahoma contended the company harmed the public for profit.
“The last thing we want to do is disseminate information that could be deceiving to a physician,” said Jason Flanary, Oklahoma senior district manager for Janssen.
Once again in the trial, a defense witness described the selling of Janssen drugs as educating doctors about the benefits of opioids, while state attorneys characterized it as over-supplying and over-selling, falsely minimizing the risks to make millions.
The trial in the Cleveland County 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.
State attorneys said Johnson & Johnson and Janssen should pay $17.5 billion earmarked in a proposed state abatement plan and not taxpayers because the companies caused the epidemic.
Flanary, who oversaw the sales of Nuycenta in Oklahoma, told Steve Brody, the attorney for Janssen, he supervised sales representatives covering the entire state.
“We believed we had good products that provided benefits for the appropriate patients,” he said. “We educated (doctors) in the hope they would use our products."
“Were there limits to what could be discussed with physicians?” Brody asked.
“Yes,” Flanary answered. “It was regulated. The sales rep was not to create any material on their own. Everything had to be approved by the regulatory department.”
“Why does a doctor choose to see you?” Brody asked.
“Because of the value we bring, the risk versus the efficacy of the product,” Flanary said.
Flanary added that if sales reps had not brought value through their products to doctors, the doctors would not continue to see them.
He said there was an incentive plan to sell the drugs, 20 percent of compensation for sales reps.
“Did the incentive plan effect the way calls were made?” Brody asked.
“I don’t believe they did,” Flanary said. “We don’t build value by deceiving customers.”
“Could it lead to financial success?” Brody asked.
“It could. We believed when used appropriately, Janssen products provided benefits.”
“Was it the ultimate goal for doctors to seriously consider Janssen products?”
“It was,” Flanary agreed. “It was made with the best interest of the patient in mind. I’m proud of my involvement with Janssen.”
Flanary said the company had worked to provide better health care for Oklahomans.
“We hoped and prayed to inspire those people (pain patients),” he said.
Reggie Whitten, the state-hired attorney, on cross-examination asked how many hours Flanary had spent rehearsing his trial testimony.
“I don’t recall the exact number (hours),” Flanary said.
He added perhaps it was 15 hours.
“Did you have somebody play my role?” Whitten asked.
The defense objected. Cleveland County District Judge Thad Balkman sustained the objection.
“Is there an opioid epidemic in Oklahoma?” Whitten asked.
“I’m generally aware there is an epidemic of abuse and misuse,” Flanary said.
“That was not my question. What caused the epidemic? You trained people to sell opioids. Do you know what caused it?”
Defense objected. The objection was sustained.
“How do we abate the epidemic?” Whitten asked.
“I’m not an epidemiologist or an expert on the abatement plan,” Flanary said.
“Did you know before 1996 there was no epidemic?”
“No.”
“Were you aware there was an over-supply?”
“No.”
“Sales reps, you exist to sell more product,” Whitten said.
“Sir, we believe we have good products,” Flanary responded.
“Your purpose is to sell.”
“That’s correct.”
“You were paid more when you sold more,” Whitten said.
“It’s possible,” Flanary said.
“You knew what the compensation package of other companies was.”
“Not the specific details.”
“Just like Purdue (competitive supplier), the more opioids they (reps) sold the more they get paid.”
“I can’t speak to outside companies.”
“The more you sell the more you get paid.”
“Yes.”
Whitten said $30 million was budgeted annually to market drugs like Duragesic.
“That sounds like a national number,” Flanary noted.
Whitten exhibited a chart that showed sales rep visits to doctors peaked at 20,933 visits in Oklahoma in 2006, 18,264 visits in 2012, up from 2,024 visits in 1998.
A red line on the chart represented deaths from overdose, a green line sales calls.
“You see that as sales go up so do deaths,” Whitten said.
“I’m aware opioids is a complex issue,” Flanary said.
“As opioid sales go up, deaths go up. If you do something wrong, you need to fess up, yes or no?” Whitten asked.
“I was taught to teach responsibility and to make the right decisions,” Flanary said.
“I didn’t ask for a speech. I’m asking a simple question.”
“I disagree Janssen did something wrong,” Flanary said.
“I’m not asking that,” Whitten said.
Whitten repeated his question, if wrong were committed, should it be admitted.
“Yes,” Flanary said.
“You’re not suggesting your company never does anything wrong,” Whitten said.
“We’re not perfect,” Flanary said.
“If a (sales) rep exaggerated, it could be dangerous?”
“Yes, it could cause harm,” Flanary said.
Flanary reiterated the company’s objective had been to educate doctors that Duragesic and other Janssen products were safe and effective.